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Karnataka High CourtSri Jagadish vs The State Of Karnataka on 5 July, 2013Author: K.L.Manjunath And Malimath 1

IN THE HIGH COURT OF KARNATAKA AT BANGALORE

DATED THIS THE 5TH DAY OF JULY 2013

PRESENT

HON'BLE MR.JUSTICE K.L.MANJUNATH

AND

HON'BLE MR. JUSTICE RAVI MALIMATH

WRIT APPEAL NOS.579-581/2012 C/W 449-451/2012

WRIT APPEAL NOS.579-581/2012

BETWEEN:

SRI JAGADISHAGED 43 YEARSNO.669, M.K.K.ROAD2ND BLOCK, RAJAJINAGARBANGALORE-560 010 ... APPELLANT

(BY SRI S.P.KULKARNI, ADVOCATE)

AND :

1. THE STATE OF KARNATAKA DEPARTMENT OF REVENUE REPRESENTED BY ITS SECRETARY M.S.BUILDING BANGALORE

2. THE DEPUTY COMMISSIONER BANGALORE URBAN DISTRICT BANGALORE

3. THE ASSISTANT COMMISSIONER BANGALORE NORTH BANGALORE 2

Sri Jagadish vs The State Of Karnataka on 5 July, 2013

Indian Kanoon - http://indiankanoon.org/doc/62097705/ 1

4. SRI G.N.RAMACHANDRA S/O LATE NANJUSA AGED ABOUT 78 YEARS

5. SRI G.N.TUKARAM S/O LATE NANJUSA AGED ABOUT 78 YEARS

6. SRI G.G.VASANTH S/O LATE G.N.GNANDEV AGED ABOUT 58 YEARS

7. SRI G.G.RAVI S/O LATE G.N.GNANDEV AGED ABOUT 56 YEARS

8. SRI G.G.RAM S/O LATE G.N.GNANDEV AGED ABOUT 54 YEARS

9. SRI G.G.LAKSHMAN S/O LATE G.N.GNANDEV AGED ABOUT 52 YEARS

ALL ARE RESIDENTS OFC/O M/S AMAR TAPES INDUSTRIESNO.28 & 28/1, 20TH CROSSHOODI HANUMANTHAPPA LANEKILLARI ROADBANGALORE-560 053 ... RESPONDENTS

( BY SRI M.KESHAVA REDDY, AGA FOR R1 TO R3; SRI H.P.MUDLAPPA, ADVOCATE FOR R4 TO R9)

These Writ Appeals are filed under Section 4 of theKarnataka High Court Act praying to set aside the orderpassed in the Writ Petition No.19589-11591/2011dated 16.08.2011. 3

WRIT APPEAL NOS.449-451/2012

BETWEEN:

1. G.N.RAMACHANDRA SON OF LATE NANJUSA



AGED ABOUT 79 YEARS

2. G.N.TUKARAM SON OF LATE NANJUSA AGED ABOUT 79 YEARS

3. G.G.VASANTH AGED ABOUT 59 YEARS

4. G.G.RAVI AGED ABOUT 57 YEARS

5. G.G.RAM AGED ABOUT 55 YEARS

6. G.G.LAKSHMAN AGED ABOUT 53 YEARS

A3 TO A6 ARE SONS OF LATE G.N.GNANDEVALL RESIDING AT C/O M/S AMAR TAPESINDUSTRIES, NO.28 AND 28/1, 20TH CROSSHOODI HANUMANTHAPPA LANEKILLARI ROADBANGALORE-560 053 ... APPELLANTS

[BY SHRI H.P.MUDLAPPA AND SHRI SANGAMESH R.B., ADVOCATES, SHRI C.M.NAGABHUSHAN, ADVOCATE FOR A3 AND A4(NOC) ]

AND :

1. THE STATE OF KARNATAKA DEPARTMENT OF REVENUE REPRESENTED BY ITS SECRETARY 4

M.S.BUILDING BANGALORE-560 001

2. THE DEPUTY COMMISSIONER BANGALORE URBAN DISTRICT BANGALORE-560 009

3. THE ASSISTANT COMMISSIONER BANGALORE NORTH BANGALORE-560 001

4. JAGADISH S/O YALLAPPA



NO.669, M.K.K.ROAD 2ND BLOCK, RAJAJINAGAR BANGALORE-560 010 ... RESPONDENTS

( BY SRI S.P.KULKARNI, ADVOCATE FOR C/R4; SRI M.KESHAVA REDDY, AGA FOR R1 TO R3)

These Writ Appeals are filed under Section 4 of theKarnataka High Court Act praying to set aside the orderpassed in the Writ Petition No.11589-11591/2011dated 16.08.2011.

These Writ Appeals coming on for Hearing thisday, K.L.MANJUNATH. J., made the following: -

JUDGMENT

These appeals are filed challenging the legality and correctness of the order passed inW.P.Nos.11589-11591/2011 dated 16th August 2011. The appellant in W.A.Nos.579-581/2012 wasrespondent No.4. The appellants in writ appeal Nos.449-451/2012 were the writ petitioners.Therefore, all these appeals are heard together.

2. The facts leading to these appeals are as hereunder:

One Nanjusa, the father of the writ petitioners had purchased about 4 acres and 13 guntas of land insurvey No.77 of Agrahara Dasarahalli village in Bangalore city under two sale deeds from oneGundamma and Papaiah on 28.06.1962. Gundamma and Papaiah were enjoying the lands pursuantto their hereditary rights in respect of personal and miscellaneous inams. On 04.08.1962, undersection 5 of the Mysore (Personal and Miscellaneous) Inams Abolition Act, 1954, the order ofregrant was granted to Gundamma and Papaiah. Thereafter, the father of the writ petitionersNanjusa converted the land from agricultural to non-agricultural purposes pursuant to the orderpassed by the Deputy Commissioner, Bangalore, on 27.05.1965. Subsequently, Nanjusa divided theproperties under the registered document on 8.5.1974. The petitioners having availed loan from thebank commenced a factory therein after obtaining necessary plan and licence in the year 1985. Inrespect of the very same land, certain civil suits were also filed by the writ petitioners and so also byone of the legal heirs of Gundamma by name Ramakka, the daughter of Gundamma. Aggrieved bythe dismissal of her suit, she filed an appeal in R.F.A.No.283/2001 which appeal also came to bedismissed by this court on 19.3.2004. Later Ramakka also challenged the order of conversiongranted by the Deputy Commissioner in favour of the father of the writ petitioners by filing anapplication in 2009 which application came to be rejected on 2.6.2010.

3. 4th respondent who is not the descendant of Gundamma or Siddamma addressed a letter to theDirector of Civil Enforcement Cell, questioning the legality and correctness of the sale deed executedby Gundamma and Papaiah on 28.06.1962 which was treated as an application under section 4 ofthe PTCL Act by the Assistant Commissioner who ordered for resumption on 09.09.2010.



4. Aggrieved by the order passed by the Assistant Commissioner, the writ petitioners filed an appealbefore the Deputy Commissioner under section 5A of the PTCL Act, which appeal came to bedismissed on 18.03.2011 in appeal No.89/2010.

5. Aggrieved by the order of the Assistant Commissioner dated 09.09.2010 and the order passed bythe Deputy Commissioner dated on 17.03.2011, the writ petitions came to be filed.

6. It was contended by the writ petitioners that fourth respondent Jagadish has no locus standi toinvoke the provisions of P.T.C.L. Act. and that there was no application filed by him as requiredunder the provisions of the PTCL Act and that considering the nature of rights of Gundamma andPapaiah, the provision of PTCL Act had no application. Accordingly, they requested the Court toallow the writ petitions and to set-aside the orders passed by the Assistant Commissioner as well asthe Deputy Commissioner.

7. The writ petitioners relied upon the judgment rendered by the very same learned Single Judge inthe case of M.Munikenchappa vs. The Special Deputy Commissioner, Bangalore Dist. and others(2004(2) KCCR 1025).

8. It was contended that fourth respondent was the legal heir of Siddamma and he has a right tomaintain a petition for resumption and that the judgment of the learned single Judge inMunikenchappa's case was no more a good law.

9. The learned Single Judge after hearing the parties, reconsidered his earlier order passed inMunikenchappa's case and came to the conclusion that the land granted to Siddamma andGundamma under Section 5 of the Mysore (Personal & Miscellaneous) Inam Abolition Act, 1954would attract the definition of 'granted land' under section 3(1)(b) of the PTCL Act. Accordingly, hedismissed the writ petitions. While dismissing the writ petitions, he has issued several directions tovarious authorities in the manner in which the case of the parties are to be considered.

10. Aggrieved by the dismissal of the writ petitions, the writ petitioners have filed a first set ofappeals. Aggrieved by the directions issued by the learned Single Judge, fourth respondent in thewrit petitions has also filed the appeals contending that when once the learned single Judge hasdismissed the writ petitions holding that the provisions of the PTCL Act is applicable, he hadexceeded in his jurisdiction in issuing directions to the several authorities as to how the case offourth respondent has to be considered.

11. We have heard Shri H.P.Mudlappa, learned Counsel appearing for the appellants/writpetitioners and Shri S.P.Kulkarni, learned Counsel who appeared for fourth respondent in the writpetitions. We have also heard the learned Government Advocate.

12. Shri Mudlappa, learned Counsel appearing for the appellants contends that the finding of thelearned single Judge that the judgment delivered by him in Munikenchappa's case is per incuriam isincorrect because the judgment in Munikenchappa's case has been affirmed by a Division Bench ofthis Court in W.P.No.3914/2009 in the matter of Jayamma v. The Assistant Commissioner,



Davanagere Sub Division, Davanagere and others and he also submits that the learned single Judgehas committed a serious error in not appreciating the definition of 'granted land' defined undersection 3 of the PTCL Act. According to him, there are different types of inams. Inam referred tounder the definition of 'granted land' which attracts the provisions of PTCL Act is pertained to theland granted to Inamdar and that the provisions of the Mysore (Personal & Miscellaneous) InamAbolition Act, 1954, has no application for resumption under the PTCL Act, because the land wouldbe granted to a person who is having a pre-existed right and as such, grant of land under theprovisions of the Mysore (Personal & Miscellaneous) Inam Abolition Act, 1954 would not attract theprovisions of the PTCL Act. He also relied upon a full Bench judgment of this Court in MohammedJaffar and another v. State of Karnataka (ILR 2002 KAR 4693). In the circumstances, he requeststhe Court to allow the appeals and dismiss the proceedings initiated by the Assistant Commissioner,so also the order passed by the Deputy Commissioner and the learned Single Judge.

13. Mr.S.P.Kulkarni, learned Counsel appearing for fourth respondent supporting the order of thelearned single Judge contends that the learned single Judge who decided Munikenchappa's case hasreconsidered the entire matter in detail in the present case and also considering the judgment inJaffar's case, has held that the judgment rendered by him in Munikenchappa's case as per incuriam.He further submits that the division bench while considering the case of Jayamma did not considerthe order of the learned Single Judge in the present case where he has held that the judgmentrendered by him in Munikenchappa's case is per incurium. He further contends that Jaffar's caseonly deals with the matter arising out of the Land Reforms Act and as such, the said judgmentcannot be extended to the land granted under the Mysore (Personal & Miscellaneous) InamAbolition Act, 1954. In regard to first appeal, he contends that when once the writ petition isdismissed, the learned Single Judge is not justified in issuing direction to the various authorities.According to him, the learned Single Judge was required to dismiss the writ petitions without anyfurther observations. In the circumstances, he requests the Court to allow his appeal by dismissingthe appeals of the writ petitioners.

14. Having heard the learned Counsel for the parties, we have to consider the following points inthese appeals:

1) If a land is regranted by the Special Deputy Commissioner in favour of a person under section 5 ofthe Mysore (Personal & Miscellaneous) Inam Abolition Act, 1954, can be considered as a 'grantedland' as defined under section 3 of the PTCL Act?

2) Whether the judgment in Jayamma's case decided by a Division Bench of this Court holds thefield?

3) If these two points are held against the writ petitioners, whether the learned single Judge isjustified in issuing several directions to the different authorities after dismissing the writ petitions?

15. The facts in these appeals are not in dispute to the following extent:



The writ petitioners' father Nanjusa has purchased the lands in question under two registered saledeeds from one Siddamma and Gundamma on 28.06.1962. It is also not in dispute that these landswere regranted to Siddamma and Gundamma by the Special Deputy Commissioner of InamAbolition under section 5 of the Mysore (Personal & Miscellaneous) Inam Abolition Act, 1954.Therefore, the short question arises for our consideration is if the land is regranted to a person whohas pre-existing rights to enjoy the said land under the Mysore (Personal & Miscellaneous) InamAbolition Act, 1954, can invoke the provision of section 3 of the PTCL Act to seek resumption of theland on the ground that within a prohibited period, the land had been alienated by a scheduled casteperson.

16. In order to appreciate the aforesaid question, it would be appropriate for us to consider thedefinition of 'granted land' under the PTCL Act.

3. Definitions.- In this Act, unless the context otherwise requires.-

(a).............................................................

(b) "Granted Land" means any land granted by the Government to a person belonging to any of theScheduled Castes or the Scheduled Tribes and includes land allotted or granted to such personunder the relevant law for the time being in force relating to agrarian reforms or land ceilings orabolition of inams, other than that relating to hereditary offices or rights and the word "granted"shall be construed accordingly;

17. On a perusal of the definition of 'granted land', the legislature thought fit to exclude certain landsgranted to SC/ST persons from the purview of the definition of 'granted land'. By virtue ofhereditary offices or rights, if the land is granted to a S.C. or S.T. person, same has excluded fromthe definition of granted land under P.T.C.L. Act.

18. It is not in dispute that in the instant case, Siddamma and Gundamma were enjoying the landsin question by virtue of their hereditary offices and they had pre-existing rights to hold and enjoythe land as tenants and if such tenancy right has been later converted into absolute right by virtue ofregrant order under section 5 of the Mysore (Personal & Miscellaneous) Inam Abolition Act, 1954, itcannot be considered as a granted land. In fact, the learned Single Judge on an earlier occasionwhile considering the case of Munikenchappa, had rightly held that such land is excluded from thepurview of PTCL Act.

19. In a similar circumstance, while considering as to whether a land granted to a person by virtue ofhis pre-existing right as a tenant under the land as per the provisions of the Karnataka LandReforms Act, can be the subject matter of resumption under the PTCL Act, the full bench of thisCourt in Mohammed Jaffar and another v. State of Karnataka (ILR 2002 KAR 4693) has held thatsuch lands are excluded from the definition of 'granted land' under the PTCL Act. The divisionbench of this Court in Jayamama's case referred to above has ruled as hereunder in the similarcircumstances.



"3.............................................................. Our attention has also been drawn to thedecision in M.Munikenchappa vs. The Special Deputy Commissioner, Bangalore2004(3) Kar.L.J. 579 in which the learned Single Judge has gone into great detail. Weaffirm the correctness of this decision."

20. It has not been disputed before us that the lands were regranted in favour of Gundamma andPapaiah by virtue of they being cultivating the lands pursuant to their existed rights confirming theoccupancy right under section 5 of the Mysore (Personal & Miscellaneous) Inam Abolition Act, 1954.A Division Bench of this Court has already affirmed the judgment in Munikenchappa's case havinggone in detail, even if the very same single Judge has later held that his judgment inMunikenchappa's case is per incuriam, this Court cannot follow the said judgment in view of theDivision Bench judgment of this Court in Jayamma's case. In the circumstances, we are of the viewthat the order of the learned Single Judge has to be set-aside holding that resumption applicationunder PTCL Act cannot be invoked if a land is granted to the person holding hereditary office andenjoying the land as a tenant and if such land has been regranted under the provisions of Mysore(Personal & Miscellaneous) Inam Abolition Act, 1954. Therefore, we allow the appeals filed by thewrit petitioners by setting aside the order of the learned Single Judge, and the order passed by theDeputy Commissioner and also the order passed by the Assistant Commissioner in orderingresumption are hereby set-aside. Since we are allowing the appeal of the writ petitioners, thequestion of considering the grievance of 4th respondent does not arise at all.

Accordingly, the writ appeal Nos.449 to 451/2012 are allowed. The order of the learned Single Judgeis hereby set-aside. The orders of resumption passed by the Assistant Commissioner, Bangalore,which has been confirmed by the Deputy Commissioner are hereby set- aside. The writ appealNos.579 to 581/2012 are dismissed.

Sd/-

JUDGE Sd/-

JUDGE YN.




os 2337 on 2011

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