Indium Developments Pvt. Ltd. vs Chennamma and Others

H.G. Ramesh, J.—Petition is filed seeking quashing of the order dated 4.9.2006 -annexure J passed by the Assistant Commissioner, Ramanagara resuming the land in favour of the 1st respondent and also the order dated 30.6.2010 - annexure M passed by the Deputy Commissioner dismissing the appeal, confirming the order of the Assistant Commissioner and to dismiss the appeal as not maintainable.

According to the petitioners, it is a registered company carrying on the business in infra structure development. One Munichenna, the father of 1st respondent filed an application 430/29-30 before the concerned authority in the year 1929-30 under the Scheduled Caste and Scheduled Tribes Rules for grant of land in Sy. No. 77 measuring about 4.06 acres situate at Hejjala Village. His brother Chenna S/o. Chenna also filed another application for the same purpose which was also numbered as 430/29-30. After due inquiry by the competent authority, the application was allowed by order dated 13.11.1935 with a non-alienation clause for a period of twenty years. After completion of the period of non-alienation, in the year 1964 Channa S/o. Channa alienated the property to an extent of 3.36 acres under a registered sale deed on 16.4.1964 to one Narayanappa S/o. Munilingaiah/2nd respondent and thereafter, the land has changed several hands. Later, the name of one Govindappa S/o. Thimmaiah to the extent to 20 guntas in Sy. No. 77/1 was mutated in No. 13/96-97 who got the said land converted for non-agricultural residential purpose from the Deputy Commissioner, Bangalore Rural District on 23.5.2006. Thereafter under the sale deed dated 26.5.2006 land was sold to the petitioner in the Sub-Registrar''s Office, Ramanagara.

The said Narayannappa and his sons Kenchalingaiah, Basappa and Dhananjaya/respondents 3 to 5 sold the property in Sy. No. 77 in favour of Kenchamaraiah on 26.6.1995 in document No. 819. Kenchamaraiah sold 1.36 acres in the said survey number to the 12th respondent/P. Nagaraj under a registered sale deed dated 24.10.1996 also the katha was transferred in his name. Stating that some other properties were also purchased by the said Nagaraj. It is stated, the said survey number was renumbered as 77/2 after bifurcation and he has got converted the land for non-agricultural purpose from the Deputy Commissioner on 23.5.2006. It is the petitioner''s case that the entire land was transferred by the said Nagaraj in favour of the petitioner by sale deed dated 31.5.2006. The crux of the case is 1st respondent claiming to be the daughter of original grantee, filed an application for resumption before the Assistant Commissioner under the P.T.C.L. Act. Though notice is not served on all the parties, the Assistant Commissioner passed an exparte order resuming the land. Against the said order, petitioners approached the Deputy Commissioner during 2006-07. Even notice is served on the respondent by way of paper publication. Once again steps were taken on the constitution of Ramanagara District. However, order has been passed without properly notifying the date of the order i.e., while dismissing the appeal petitioner had not been informed regarding proceedings held by the Deputy Commissioner, Ramanagara. Hence, this petition.

The stand of the 1st respondent was that the property which was sold was contrary to the provisions of the P.T.C.L. Act. As such, land has to be resumed and handed over to the 1st respondent. It transpires that the original grant is of the year 1935. The non-alienation clause provided is for a period of twenty years. The property is sold during April 1964 and the subsequent sale also is during 1995-96, 2006, etc. Thereafter, the land was got converted for non-agriculture purpose by the order of the Deputy Commissioner. The contention raised by the 1st respondent before the Assistant Commissioner is, land has to be resumed as per the P.T.C.L. Act.

The submission of the petitioner''s counsel herein who is the purchaser of the land in the said survey number under various transactions is, the non-alienation clause provided originally as per the Mysore Land Revenue Code is only for twenty years and after expiry of twenty nine years such a transaction has taken place and it is not hit by the provisions of the Mysore Land Revenue Code or the provisions of the P.T.C.L. Act. Accordingly, he tried to demonstrate that this is not a case for resumption, order has been passed by the Assistant Commissioner and thereafter by the Deputy Commissioner without application of mind and therefore, they are before this Court.

Counsel for the respondent submitted that durast has been made subsequently as such, it is very much within the non-alienation period.

Having heard the counsel for the parties, the point for determination is whether the order of the Assistant Commissioner in resuming the land which order is confirmed by the Deputy Commissioner is proper and whether the impugned order requires interference.

Counsel for the petitioner, in support of his argument has relied upon the case of Manchegowda and Others Vs. State of Karnataka and Others, and also the judgment of this Court in the case of Sri. L. Krishnoji Rao and Others Vs. State of Karnataka and Others, wherein in similar circumstance, the condition being one of prohibition for a period of twenty years i.e., the grant being of the year 1930 and the transaction which has taken place during 1972 being beyond the period of twenty years does not get caught in the mischief of sub-sec. 4(1) and (2) of the P.T.C.L. Act, 1971. Even in the case of R. Kumaraswamy Vs. Smt. Channamma and Others, what is being stated as to the application of S. 4 of the P.T.C.L. Act is, if the sale has taken place after the expiry of the non-alienation clause but before the Act came into force, the sale would be valid. Even in Manchegowda''s case cited supra, in para 24 it is clearly stated where the land granted has been transferred before the commencement of the Act in violation of the prohibition clause, such transfer of granted land would not come in the purview of the present Act i.e., the P.T.C.L. Act as the title on such transfer in the granted land has been perfected before the commencement of the Act. Further, it is made specific by the Apex Court that the provisions of the P.T.C.L. Act has to be read down to hold that the Act would apply to transfer of the land made in breach of the condition imposing prohibition on transfer of granted lands only those cases where the title acquired by the purchaser was still voidable on the date of commencement of the Act and had not lost its defeasible character at the date when the Act came into force. It is made specific that transferees of granted land having perfected title not voidable at the commencement of the Act must be held to be outside the purview of the provisions of the P.T.C.L. Act. Thus, it is clear that when the original grant was during 1935, the property was sold during 1964, it is beyond twenty years and at that point of time, the provisions of the P.T.C.L. Act was not in force. Even after the alienation period is completed, the requirement of obtaining permission from the Government to sell the land is not required.

At the outset, even as per the date of events what is not in dispute is, during November 1935 there is a grant in Sy. No. 77 of Hejjala Village in favour of Channa and others. Thereafter, the first alienation is made by Narayana under a registered sale deed who has purchased the property during April 1964. It is nearly after twenty nine years and more over, as per the old Mysore Land Revenue Code, the non-alienation clause is only for twenty years. Even the time limitation provided was exhausted and alienation is made thereon, question of saying that government permission was not obtained for such sale does not arise in view of the fact there was no clause provided under the Land Revenue Code. The application of P.T.C.L. Act which provides for permission for alienation also would not arise as the grant was made prior to the application of the P.T.C.L. Act coming into force from 1971. In the circumstances, impugned order passed by the Assistant Commissioner, confirmed by the Deputy Commissioner without application of mind and without considering the actual point of limitation that arises for consideration, is without proper authority of law. Accordingly, both the orders of the Assistant Commissioner as well as the Deputy Commissioner are set aside thereby confirming the sale of the land which was granted in favour of the original grantee which was sold in favour of the purchasers and then in turn, in favour of the petitioners, holding it as valid. So far as the stand taken by the respondent that durast was made belatedly, it is only consequential and for identification of the boundaries and has got nothing to do with the sale of the property which is beyond the period of non-alienation.

Petition is allowed. Impugned orders are set aside thereby confirming the right of the petitioners in respect of the property in question.