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2021 DIGILAW 623 (KAR)

Mangalagowramma v. State of Karnataka

2021-06-01

B.V.NAGARATHNA, HANCHATE SANJEEV KUMAR

body2021
JUDGMENT : B.V. Nagarathna, J. 1. The legality and correctness of the order dated 30/08/2018, passed by the learned Single Judge in W.P. No. 34468/2017 (SC/ST) is called in question in this intra-court appeal. By the said order, the writ petition filed by the appellant herein was dismissed. 2. The writ petition was filed in respect of land bearing Sy. No. 197 of Abbenahalli Village, Kasaba Hobli, Malur Taluk, ad measuring 2.00 acres. The said land was granted to Sri. Akkannappa at an upset price by an order of the Assistant Commissioner of Kolar Sub-Division dated 23.11.1961 vide challan No. 115 dated 27.06.1963. According to the appellant, the said land was granted under the 'Grow More Food' Scheme. The Saguvali Chit in respect of the said land was issued on 15.07.1963. According to the appellant, name of Shri Akkannappa-the grantee was entered in the Revenue Records with a Mutation No. MR 16/1984-85. Copy of the extract of the Land Grant Register maintained by the Tahsildar is produced at Annexure-A to the writ petition, copy of the Saguvali Chit at Annexure-B, the Mutation Extract is produced as Annexure-C and the copy of the RTC is produced as Annexure-D to the writ petition. 3. According to the appellant, Sri. Akkannappa was suffering from ailments owing to his old age and the appellant in order to help him came forward to purchase the land from Akkannappa. But, Akkannappa was not in a position to get the document registered immediately, on account of his ailments and he entered into a Settlement Deed/Agreement of Possession in favour of the appellant and put the appellant in possession of the land bearing Sy. No. 197 measuring two acres situated at Abbehanalli village which is the land granted under the 'Grow More Food' scheme. According to the appellant, Akkannappa utilized the proceeds of sale of the land towards his medical and domestic expenses and did not come forward to execute a document of conveyance in favour of the appellant and he died. 4. That the appellant continued to remain in possession and enjoyment of the land in question without any interference and when the matter stood thus, a person by name A. Krishnappa claiming to be the son of Akkannappa tried to interfere with the possession of the land by the appellant. 4. That the appellant continued to remain in possession and enjoyment of the land in question without any interference and when the matter stood thus, a person by name A. Krishnappa claiming to be the son of Akkannappa tried to interfere with the possession of the land by the appellant. Appellant filed O.S. No. 270/2001 on the file of Civil Judge, at Maluru seeking relief of declaration and injunction against A. Krishnappa and members of his family. In the said suit, there was a compromise to the effect that the appellant was the absolute owner in possession and enjoyment of the land in question and there was an order restraining A. Krsihnappa and his family members from interfering with the possession of the appellant. The said compromise decree dated 16.02.2002 was passed before the Lok Adalat and a copy of which is at Annexure-E. 5. Thereafter, the fourth respondent herein, claiming to be a legal heir of the grantee-Akkannappa, approached the appellant claiming right over the land in question and when the decree passed in O.S. No. 270/2001 was brought to the notice of the fourth respondent herein, he filed an application before the Assistant Commissioner under the provisions of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 (hereinafter referred to as 'PTCL Act' for short). The Assistant Commissioner allowed the application by his order dated 11.02.2015 and directed that possession of the land to be handed over to the fourth respondent. 6. Being aggrieved by the aforesaid order (Annexure-F), the appellant herein filed an appeal before the Deputy Commissioner under Section 5(a) of the PTCL Act. The Deputy Commissioner by his order dated 15.03.2017 (Annexure-G) dismissed the appeal. 7. Being aggrieved by the dismissal of the appeal, the appellant preferred W.P. No. 34468/2017 (SC/ST) challenging the orders of the Deputy Commissioner as well as the Assistant Commissioner. The learned Single Judge dismissed the writ petition on 30.08.2018. Hence this appeal. 8. We have heard learned counsel for the appellant, learned AGA for respondent Nos. 1 to 3 and learned counsel for respondent No. 4 and perused the material on record. 9. The learned Single Judge dismissed the writ petition on 30.08.2018. Hence this appeal. 8. We have heard learned counsel for the appellant, learned AGA for respondent Nos. 1 to 3 and learned counsel for respondent No. 4 and perused the material on record. 9. Appellant's counsel submitted that although the fourth respondent herein filed the application before the Assistant Commissioner seeking resumption and restoration of the land in question under the provisions of the PTCL Act, there has been no order as such restoring the land in favour of the appellant herein and the appellant continues to be in possession of the land. He submitted that the Deputy Commissioner has stated that the land had to be restored to the legal heir of the original grantee -Sri. Akkannappa by sustaining the order of the Assistant Commissioner. Therefore, there was no categorical direction that the land in question has to be restored in favour of the fourth respondent. 10. That apart, the authorities have ignored the fact that the appellant herein had filed O.S. No. 270/2001 on the file of Additional Civil Judge (Jr. Dn.), Maluru, seeking the relief of declaration and injunction against A. Krishnappa, the sons of the original grantee. The said suit, ended in a compromise and it was declared that the appellant was the owner in possession of the land in question and a direction was issued not to interfere with the same as against A. Krishnappa and his family members and the same is binding on the said parties. The said fact has been ignored by the Assistant Commissioner as also the Deputy Commissioner. 11. Further, the fourth respondent who claims to be the grandson of the original grantee through his daughter has failed to establish the above said fact. If really he was so aggrieved by the said judgment and decree passed in O.S. No. 270/2001, he could have assailed the same. That has not been done so by the fourth respondent. 12. Learned counsel for the appellant further contended that there could not have been a general direction issued to ascertain the legal heirs of the original grantee-Sri. Akkannappa and to restore the land to them in the absence of fourth respondent being recognized as the legal heir of the grantee. That has not been done so by the fourth respondent. 12. Learned counsel for the appellant further contended that there could not have been a general direction issued to ascertain the legal heirs of the original grantee-Sri. Akkannappa and to restore the land to them in the absence of fourth respondent being recognized as the legal heir of the grantee. If indeed, the fourth respondent was the legal heir of the original grantee and if there was a case made out by him, the land in question would have been resumed and restored in his favour but that has not been done so by the authorities. As against the orders of the Assistant Commissioner and Deputy Commissioner, the fourth respondent has not filed any writ petition. He has accepted the same. On the other hand, the direction issued by the said authorities to trace out the legal heirs of the original grantee-Sri. Akkannapa to restore the land on resumption in their favour has adversely affected the right, title and interest of the appellant in the land in question. Therefore, the appellant filed the writ petition. But, the learned Single Judge has simply endorsed the orders passed by the Deputy Commissioner as well as the Assistant Commissioner without taking into consideration the fact that, as against A. Krishnappa and his family members namely, the son of the original grantee, there was already a compromise decree passed in O.S. No. 270/2001 and it was in favour of the appellant herein. 13. Learned counsel for the appellant submitted that having regard to the said decree, no direction could have been issued by the authorities or by the learned Single Judge to restore the land to the legal heir of the original grantee, Sri. Akkannappa. 14. Learned counsel for the appellant further submitted that the grant to Akkannappa was under 'Grow More Food' Scheme and that such a land does not come within the nomenclature of 'granted land' under Section 2(b) of the PTCL Act. He relied on judgments of this Court in that regard in support of his contention. 15. He further submitted that the order of the learned Single Judge may be set aside and the orders of the authorities also may be quashed and the application filed by the fourth respondent before the Assistant Commissioner may be dismissed. 16. He relied on judgments of this Court in that regard in support of his contention. 15. He further submitted that the order of the learned Single Judge may be set aside and the orders of the authorities also may be quashed and the application filed by the fourth respondent before the Assistant Commissioner may be dismissed. 16. Per contra, learned Additional Government Advocate and learned counsel appearing for the fourth respondent supported the order of the learned Single Judge as well as the orders passed by the Deputy Commissioner as well as the Assistant Commissioner directing that the land in question be restored to the legal heir of the original grantee-Sri. Akkannappa. They submitted that even though there has been no writ petition or appeal filed by the fourth respondent herein, the latter being one of the legal heirs of the original grantee-Akkannappa, the land in question ought to be restored in favour of the fourth respondent herein. They submitted that there is no merit in the appeal and the same may be dismissed. 17. The detailed narration of facts and contentions does not call for reiteration. It is not in dispute that Akkannappa was the original grantee of the land in question. It is on record that A. Krishnappa was the son of Sri. Akkannappa. As against A. Krishnappa, a suit in O.S. No. 270/2001 was filed by the appellant herein. The said suit ended in a compromise decree dated 16.02.2002 which was before the Lok Adalat. The said compromise decree reads as under: "Compromise before Lok Adalath Decree in original suits. In the Court of the Addl. Civil Judge (Jr. Dvn) Malur O.S. 270/01 Plaintiff: K. Mangalagowramma, W/o. C. Muniswamy, Aged about 45 years, Agriculture, R/at karanji Extension, Malur Town. Vs. Defendant: (1) A Krishnappa, S/o. akkannappa, 55 years, School Inspector, (2) Earamma, W/o. A. Krishnappa, 50 years, (3) K. Shivakumar, S/o. A. Krishnappa, (4) K. Ravikumar, S/o. A. Krishnappa, All are r/at No. 1771, KHB Colony, Vijayanagar, Bangarpet, Kolar District. ... Claim: Sri. K.M. Gurumurthy Advocate for plaintiff presented plaint on 27-11-01. Suit for judgment and decree against the defendants. (a) By declaring the plaintiff is the owner in possession and enjoyment of the suit property by law of adverse possession. ... Claim: Sri. K.M. Gurumurthy Advocate for plaintiff presented plaint on 27-11-01. Suit for judgment and decree against the defendants. (a) By declaring the plaintiff is the owner in possession and enjoyment of the suit property by law of adverse possession. (b) By restraining the defendants their agents and any others claiming on their behalf from interfering with the plaintiffs peaceful possession and enjoyment of the suit property and also from cutting and removing the eucalyptus tree by means of permanent injunction, (c) To grant costs and such other reliefs, This suit is coming on this day for final disposal before Sri. K.S.N. Karanth, B.A. Law LLB., Member Secretary of Taluk legal committee, Malur in the presence of Sri. N.G. Ravi Kumar legal conciliator of Lok Adalath and Sri. K.M. Gurumurthy, Advocate for plaintiff and C. Aswathanaryana Advocate for defendants. It is ordered and decreed that the suit is decreed in terms of compromise. The terms and condition of compromise petition are as follows:-the defendants admit all the plaint averments and give up their rights over the suit land. Further, it is ordered that plaintiff is the owner in possession and enjoyment of the Suit Schedule property and defendants their agents and any other persons claiming under them are restrained from interfering in to the suit property. Given under my hand and Seal of the Court dated 16th day of February 2002." 18. As already stated, the said suit was filed by the appellant herein as against the son of original grantee A. Krishnappa and his family members. In terms of the compromise, it was held that they had given up their right, title and interest over the land in question which was the suit land and they were restrained from interfering with the suit land i.e., the land in question. Therefore, as against the son of the original grantee, there is a binding decree which is in the form of a compromise decree and hence the question of restoring the land to A. Krishnappa, the son of the original grantee does not arise at all. 19. That apart, the fourth respondent herein claimed to be the grandson of A. Krishnappa and therefore, a legal heir through the daughter. 19. That apart, the fourth respondent herein claimed to be the grandson of A. Krishnappa and therefore, a legal heir through the daughter. If really he had established that he was entitled for restoration of the land in question, then the Assistant Commissioner and the Deputy Commissioner as well as the learned Single Judge would not have issued an order to restore the land to the legal heir of the original grantee. That itself shows that there is no categorical finding and direction to the effect that the land should be restored to the applicant/fourth respondent herein. In fact, the said order has not been challenged by the fourth respondent before this Court. He has accepted the said order. He has also not assailed the compromise decree between the appellant and the son of the original grantee A. Krishnappa. 20. More significantly, A. Krishnappa has sought to come on record in the proceeding before the Deputy Commissioner. The fourth respondent filed objections to it, which itself demonstrates that he did not recognise the fact that A. Krishnappa was one of the legal heirs of Akkannappa-the original grantee. This is despite the binding compromise decree between the parties to the suit filed by the appellant herein against A. Krishnappa and his family members. There is also no categorical finding that the fourth respondent was the legal heir of Akkannappa inasmuch as, no direction was issued by either the Assistant Commissioner, Deputy Commissioner or the learned Single Judge to restore the land in favour of the fourth respondent. A direction was given to restore the land in question to the heirs of the original grantee. Such a vague direction could not have been granted when the fourth respondent failed to establish that he was entitled to restoration of the land as the legal heir of the original grantee. The said direction therefore, is wholly inappropriate when the fourth respondent who was the applicant was unsuccessful in seeking an order of restoration in his favour. 21. In the circumstances, we find that the learned Single Judge was not right in sustaining the directions issued by the Deputy Commissioner as well as the Assistant Commissioner to restore the land to the heirs of the original grantee-Akkannappa at the instance of the fourth respondent. 21. In the circumstances, we find that the learned Single Judge was not right in sustaining the directions issued by the Deputy Commissioner as well as the Assistant Commissioner to restore the land to the heirs of the original grantee-Akkannappa at the instance of the fourth respondent. In fact, it is not known as to on what basis the fourth respondent filed the application seeking restoration of the land in question when he was unsuccessful in seeking a direction that such a restoration must be made in his favour. Further, he failed to challenge the said direction issued by the authorities as well as by the learned Single Judge. Hence, we find that such a direction is incorrect and therefore the same ought to be set aside is set aside. 22. The other aspect of the matter is, appellant's contention that the grant was effected under the 'Grow More Food' Scheme, which is evident from a reading of Annexure-A. It is a copy of the extract of grant. He submitted that any grant made under the 'Grow More Food' Scheme does not fall within the scope and ambit of granted land under the PTCL Act. In that regard, reliance was placed on judgment of a learned Single Judge in the case of SMT. SHIVALINGAMMA Vs. SPECIAL DEPUTY COMMISSIONER, (1991(2) KAR. L.J. 421) (Shivalingamma); and SMT. SIDDAMMA Vs. CHIKKEGOWDA & OTHERS, (1991(1) Kar. L.J. 210 (HC) DB) (Smt. Siddamma), a judgment of the Division Bench wherein it has been held that when the land is granted under the 'Grow More Food' Scheme, it does not come within the expression "granted land" under PTCL Act. The application filed by the fourth respondent itself was not maintainable is the contention of appellant's counsel. 23. We have considered the judgment in the case of SMT. SHIVALINGAMMA, wherein it is noted that lands were granted under the 'Grow More Food' Scheme, launched by the State Government. That the grantee therein would be enjoying leasehold rights of the land before the said land would be granted in his favour. Following the Division Bench judgment in SMT. SIDDAMMA, it was held that the said grant did not come within the purview of 'granted land' under the provisions of PTCL Act. That the grantee therein would be enjoying leasehold rights of the land before the said land would be granted in his favour. Following the Division Bench judgment in SMT. SIDDAMMA, it was held that the said grant did not come within the purview of 'granted land' under the provisions of PTCL Act. It was also observed that one special feature about the grant made under the 'Grow More Food' Scheme is the grantee would have already been in possession and enjoyment of the land for several years even before the grant of land and he would have invested money and time and engaged in cultivating the land even prior to the grant of land under Rule 43(J) of the Karnataka Land Grant Rules, 1960 ("Rules" for short hereinafter). Considering such a grant under the provisions of the PTCL Act, it was held in the said judgment that even if there is any alienation of such a land, it would not be void since the conditions prescribed under Rule 43(J) of the Rules would apply. That Rule 43(J) begins with a non-obstante clause and the grant is made in favour of a person who is held to be a lessee and he has been cultivating the land. Hence, in view of the non-obstante clause the conditions which are usually prevalent for a grant under Rule 43(G) of the Rules would not be applicable to a case where the grant of land is made under Rule 43(J). 24. Consequently, if any alienation is made of such a land, it would not fall within the purview of the expression "in contravention of the terms of the grant of such land or the land provided under the grant made under Section 4 of the PTCL Act." Such being the case, no application before the Assistant Commissioner seeking resumption and restoration of such land under Section 4 of the Act would be maintainable even if there has been a transfer of the said land within the meaning of Section 2(b) of the PTCL Act. 25. The next judgment relied upon by the learned counsel for the appellant is that in the case of SRI MUNIRAJU AND OTHERS VS. STATE OF KARNATAKA in W.A. NOS. 4127-4134/2013 disposed of on 18.03.2015 at paragraph Nos. 13 & 14, it has been observed as under: "13. The scope in an intra-Court appeal is very-very limited. 25. The next judgment relied upon by the learned counsel for the appellant is that in the case of SRI MUNIRAJU AND OTHERS VS. STATE OF KARNATAKA in W.A. NOS. 4127-4134/2013 disposed of on 18.03.2015 at paragraph Nos. 13 & 14, it has been observed as under: "13. The scope in an intra-Court appeal is very-very limited. In this background we have examined the matter. Admittedly, land in question was granted to Marappa under the GMF scheme. Lease of the land under the GMF scheme is not restricted to any particular caste or community. Since there was shortage of food in India, scheme was brought to encourage the farmers to take the government land on lease with a condition by giving an option that the land would be confirmed in favour of the same person. Accordingly, farmers who are interested to grow more food have taken the land on lease and thereafter lands have been confined to them. 14. When the land is taken under 'Grow More Food Scheme', the lessee is not required to pay rent or lease for the first year and he was required to pay half of the assessment of the land for the subsequent years. In the circumstances, we are of the view that if the land was granted to Marappa on lease under 'Grow More Food Scheme' and thereafter it is confirmed to him, it cannot be considered as a land granted to him considering him as Scheduled Caste or a depressed person. In addition to that, appellants have not placed any material to show that the land in question was granted to Marappa under 'Grow More Food Scheme'. Appellants have only relied upon the RTC extracts to substantiate their contention that it is a granted land. But based on RTC entries, no court can hold that the land granted to Marappa as he belongs to depressed class or scheduled caste in order to attract the provisions of PTCL Act." Hence, it becomes clear that the grant of land under the 'Grow More Food' Scheme was not exclusively to members of any particular depressed class. 26. On the other hand, with regard to an application made under PTCL Act, as noted by another Coordinate Bench of this Court in PEDDA REDDY Vs. STATE OF KARNATAKA & OTHERS, 1993(1) KAR. 26. On the other hand, with regard to an application made under PTCL Act, as noted by another Coordinate Bench of this Court in PEDDA REDDY Vs. STATE OF KARNATAKA & OTHERS, 1993(1) KAR. L.M. 328), three findings would have to be recorded by the Assistant Commissioner before declaring that the sale of the land granted under the provisions of the Rules are void as per the provisions of the PTCL Act:-i) that the grant was made in favour of a person belonging to Scheduled Caste or Scheduled Tribe; ii) that the grant was either on upset price or a fee grant or for a price less than upset price; and iii) that the alienation had taken place within the period of prohibition prescribed under the Rules. The authorities under the Act have not applied their mind to these three findings while considering the application filed by the fourth respondent herein in the instant case. 27. On the other hand, a reading of the judgment of this Court with regard to the grant of land under the 'Grow More Food' Scheme does not fall within the nomenclature of 'granted land' under the provisions of PTCL Act, as the said grant is made to persons who are already cultivating the land and at an upset price under Rule 43(J) of the Rules and therefore, the conditions that would be usually mentioned under Rule 43(G) would not be applicable to the said land. There is also no categorical finding in respect of the fourth respondent by the Assistant Commissioner, Deputy Commissioner or the learned Single Judge. Therefore, a vague and general direction, that the restoration of the land to the legal heirs of the original grantee, Shri Akkannappa must be made without identifying the legal heirs, is not in accordance with law and nor a direction which is in favour of the fourth respondent which has not been assailed by him before this Court. 28. Therefore, we find that the learned Single Judge was not right in sustaining the orders of the Deputy Commissioner as well as the Assistant Commissioner in respect of the land in question. Hence the order of the learned Single Judge as well as the orders of the Deputy Commissioner and the Assistant Commissioner are set aside. 28. Therefore, we find that the learned Single Judge was not right in sustaining the orders of the Deputy Commissioner as well as the Assistant Commissioner in respect of the land in question. Hence the order of the learned Single Judge as well as the orders of the Deputy Commissioner and the Assistant Commissioner are set aside. Also, the application filed by the fourth respondent herein stands dismissed as he has not been able to demonstrate/establish the basic facts for the applicability of the PTCL Act. The appeal is allowed in the aforesaid terms. Parties to bear their respective costs.