GANGA NAIKA Vs. STATE OF KARNATAKA REPRESENTED BYITS SECRETARY REVENUE DEPARTMENT BANGALORE

JUDGEMENT

(1.) Writ petitions by persons, who claim interest in agricultural land to an extent of 2 acres 37 guntas of land in Sy.No.66/2 of G. Shankaranahalli Village, Kasaba Hobli, Arasikere Taluk, Hassan District, as past and present owners, as the 1st petitioner who had claimed interest in the land initially by way of purchasing an extent of 4 acres in the said survey number under a sale deed dated 28.6.1970 having not enforced his right under the sale deed, but later claiming interest a tenant under the 5th respondent Sri Hunya Naika S/o. Ganga Naik had obtained occupancy rights in the land to an extent of 2 acres 37 guntas of land under the provisions of Karnataka Land Reforms Act, 1961, (hereinafter referred to as ?the KLR Act?) by making an application in Form No.7 and having been granted occupancy rights as per order dated 16.07.1979 passed by the 4th respondent ? the Tahsildar, Land Tribunal, Arasikere, (copy produced as Annexure-A to the petition) and having in turn sold this land in favour of petitioners 2 and 3 under sale deed 17.12.2008 purporting to be after the expiry of 15 years from the date of order of the Land Tribunal and the 2nd and 3rd petitioners now claim ownership and to be in possession of the subject land, are all aggrieved by the adverse order that they have suffered before the 2nd respondent ? the Deputy Commissioner, Hassan District, Hassan, while functioning as an appellate authority under Section 5(A) of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978, (hereinafter referred to as ?the PTCL Act?) has while set aside the order passed by the Asst. Commissioner rejecting the request of the 5th respondent ? the original grantee to annul the sale transaction and resume the land and restore it to the original grantee, has allowed the appeal set aside the order of the Asst. Commissioner, declaring the transactions to be null and void and has directed resumption of the land and restitution to the 5th respondent and it is aggrieved by this order, the present writ petitions to quash the same.

(2.) Appearing on behalf of the petitioners, submission of Sri. N.R. Naik, learned counsel, is that the 1st petitioner having claimed interest as a tenant under the 5th respondent and the 4th respondent ? Land Tribunal found it to be factually so and having passed the order under the provisions of the KLR Act in terms of the order at Annexure-A, the provisions of the PTCL Act could not have been invoked by the statutory authority functioning under the PTCL, Act for either disturbing the order passed by the Land Tribunal under the provisions of the KLR ACT nor for directing resumption of the land in favour of the State and for restitution of the subject land in favour of the 5th respondent.

(3.) What is submitted by learned AGA with reference to Section 3(1)(e) of the PTCL Act providing the definition for the word "Transfer" reading as under:- "3(1)(e) ?transfer? means a sale, gift, exchange, mortgage (with or without possession), lease or any other transaction not being a partition among members of a family or a testamentary disposition and includes the creation of a charge or an agreement to sell, exchange, mortgage or lease or enter into any other transaction." Is that for the purpose of the PTCL Act the work "Transfer" also includes the work ?Lease? and in the instant case, the question being one arising initially by way of sale and then trying to convert that into a lease etc., and all such transactions being within the definition of the word transfer and if the transfer was found to be in violation of the terms of the grant to the original grantee i.e., 5th respondent being a transaction which had taken place and the order passed by the Land Tribunal being dated 16.7.1979 i.e. after the provisions of PTCL Act had come into force and with the PTCL Act having the effect of prevailing over the other statutory provisions, the Land Tribunal could not have passed the order and the order passed by the Land Tribunal being derogatory to the provisions of the PTCL Act, it does not sustain in law and neither the 1st petitioner nor 2nd and 3rd petitioners can claim any right, title and interest under such an order which is unsustainable in law. Mr. Om Kumar would also submit that for the provisions of the KLR Act to be attracted, it is essential that the land should be in private ownership and a person claiming interest should be a tenant in terms of lease transaction. But in the instant case, in the first instance, the land was never in the ownership of the original grantee i.e., 5th respondent that the ratio of MOHAMMED JAFFAR case is based on factual situation, that the subject land in that case was not a granted land whereas in the present case it is undisputedly a land which had been granted by the State Government in favour of the 5th respondent as per the grant order of the year 1963 and as a person belonging to the scheduled caste community and with various conditions expressly and statutorily imposed, it could not have been sold or transferred within the meaning of Section 3(1)(e) of the PTCL Act and the first transaction having taken place within the prohibitory period, it is one which clearly attracts the provisions of the PTCL Act and the ratio in MOHAMMED JAFFAR?s case is not applicable for the reasons mentioned therein.