Nagalingappa vs The Deputy Commissioner and Others

S.N. Satyanarayana, J.—1. This writ petition is filed impugning the judgment passed by respondent No. 1-Deputy Commissioner, Shimoga District, in case No. SC/ST.62/86-87 (Annexure ''C'' to the writ petition) dated 20.09.2010, confirming the order dated 14.03.1986 passed by respondent No. 2-Assistant Commissioner, Sagar sub-division, Sagar, in case No. PTCL/CR/325 and 326/79-80 (Annexure ''A'' to the writ petition), in so far as it pertains to the petitioner''s land measuring 02 Acres in Sy. No. 91 block No. 3 situate in Gogga village, Shikaripura Taluk, Shimoga District.

The short point for consideration in this writ petition is whether a leasehold right in respect of a land given to a person belonging to Scheduled Caste or Scheduled Tribe can be considered as a grant under Section 3(b) of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 (hereinafter referred to as the ''PTCL Act'').

Admittedly, the land in Sy. No. 91, block No. 3 situate in Gogga village, Shikaripura Taluk, Shimoga District, measuring 5 Acres, was leased in favour of Lachmappa @ Barmappa, the grandfather of respondent No. 3 herein under "Grow More Food Scheme". After the demise of the said Lachmappa, his wife Smt. Bheemakka, and her son, Manjappa, who was then a minor and represented by his natural guardian - mother, sold an extent of 2 Acres out of 5 Acres of land in favour of Deveerappa, son of Siddappa through a registered sale deed dated 21.12.1962. The aforesaid extent of 2 Acres of land is said to have been purchased by the father of the petitioner herein from the said Deveerappa on 19.06.1963. Smt. Bheemakka is said to have sold another 01 Acre of land out of 05 Acres in favour of K. Halasiddppa @ Haleshappa, son of Hanumanthappa.

Smt. Bheemakka, the wife of the original lessee, filed an application under Section 5 of the PTCL Act before respondent No. 2 - Assistant Commissioner in case No. PTCL.325 and 326/79-80 for resumption and restoration of 3 acres of land, including 2 Acres of land sold to the vendor of the petitioner herein. Respondent No. 2 after affording opportunity of hearing to the parties and considering the report of the Tahsildar that the original lessee belonged to scheduled caste and land in question could not be alienated during the lease period under the PTCL Act, allowed the petition by order dated 14.03.1986 and ordered eviction of respondent No. 1 therein and respondent No. 2 - petitioner herein, in respect of 01 Acre and 02 Acres of land respectively in their possession and accordingly, restored the said extent of 3 Acres of land in favour of Smt. Bheemakka. Respondent No. 2 further observed that since the remaining 2 Acres of land out of the total extent of 5 Acres was in possession of Smt. Bheemakka, no order of restoration was necessary in respect of the said 2 Acres.

Aggrieved by the said order of respondent No. 2 herein, petitioner herein filed an appeal in No. SC/ST.62/1986-87 before the Deputy Commissioner. The said appeal was initially dismissed for default on 12.10.1989. It transpires from the records that the petitioner herein had challenged the eviction notice issued by the Assistant Commissioner dated 04.12.1989 before this Court in W.P. No. 23296/1989, which was allowed by order dated 18.06.1990, wherein the said notice dated 04.12.1989 and the order of dismissal for default passed by Deputy Commissioner dated 12.10.1989 have been quashed and Deputy Commissioner was directed to rehear all the parties after issuing notice to them and dispose of the matter expeditiously.

During the pendency of proceedings before respondent No. 1, Smt. Bheemakka is said to have expired. Respondent No. 3 herein, the grandson of the original lessee, aggrieved by the inaction on the part of respondent No. 2 herein to put him in possession of the land restored in favour of his grandmother, Smt. Bheemakka, filed a writ petition in W.P. No. 30270/2004 before this Court for a direction to the respondent - authorities to rehear the dispute pertaining to the land in question. In the said petition, in view of the submission of the learned Additional Government Advocate that order dated 18.06.1990 passed in W.P. No. 23296/1989 was not communicated to the Deputy Commissioner and therefore, no order was passed by him, this Court disposed of the said petition by order dated 13.07.2007 and remanded the matter to the Deputy Commissioner with a direction to dispose of the same expeditiously while directing both the parties therein to appear before the Deputy Commissioner on 10.08.2007.

Pursuant to the said orders of this Court, Deputy Commissioner issued notice to both the parties and after affording opportunity to the appellant - petitioner herein and respondent No. 2 - respondent No. 3 herein, observed that the original lessee''s right over the land in question was limited and the title of the same vested with the Government and therefore, Smt. Bheemakka, the wife of the original lessee, had no right to sell the same. The appellant - petitioner herein has failed to prove his adverse possession against the State for a period of 30 years in respect of 2 Acres of land purchased by him. Accordingly, Deputy Commissioner by judgment dated 20.09.2010, has dismissed the appeal confirming the order of respondent No. 1 -Assistant Commissioner restoring the land in favour of legal heirs of the original lessee. Being aggrieved by the same, the present petition is filed by petitioner contending that his father had purchased 2 Acres of land in Sy. No. 91 block No. 3 from T. Deveerappa, who in turn, had purchased the same from Smt. Bheemakka and he has been in possession of the same and therefore, the orders passed by respondent Nos. 1 and 2 restoring the land in favour of legal heirs of original lessee are illegal and liable to be set aside.

Heard the learned counsel for petitioner and learned Additional Government Advocate appearing for respondent Nos. 1 and 2 and learned counsel for respondent No. 3 and perused the material on record. As stated supra, the short point that arises for consideration in this petition is:

"Whether the lease in respect of the land in Sy. No. 91 block No. 3 measuring 5 Acres made in favour of grandfather of respondent No. 3 -Lachmappa @ Barmappa could be considered as a grant as defined under Section 3(b) of the PTCL Act?"

The lease made in favour of grandfather of respondent No. 3 cannot be considered as a grant in as much as what was given to him was the leasehold right in respect of the said land to cultivate and enjoy the same. No absolute right was created in him by way of grant as provided under the PTCL Act. In that view of the matter, as on the date when the sale deed was executed by Smt. Bheemakka, the widow of the original lessee, in favour of Deveerappa, from whom petitioner''s father had purchased the said land measuring 2 Acres, she had no title and therefore, the sale deed did not convey any title to the vendor of the petitioner''s father. However, the father of the petitioner during his life time was in possession of the land and after his death, petitioner continues to be in possession of the property from 1964 till this date. No proceeding is initiated by the Government to cancel the sale made by the said Deveerappa in favour of the petitioner. In any event, right of respondent No. 3 herein, grandson of the original lessee, with regard to restoration of 02 Acres of land sold by Smt. Bheemakka in favour of the vendor of the petitioner''s father, which prayer was sought by late Smt. Bheemakka before Assistant Commissioner in the year 1979-80, cannot be considered in this petition for the reason that there is no violation of the conditions of PTCL Act in selling the land in as much as it was not a granted land'' as defined under Section 3(b) of the PTCL Act in the first place. Therefore, sale of 2 Acres of land by Smt. Bheemakka in favour of the vendor of the petitioner''s father herein by no stretch of imagination, can be considered as sale of the land, which was granted to the original lessee under the PTCL Act.

Learned counsel for respondent No. 3 relied upon the judgments rendered by this Court in the matter of: Madaiah v. Deputy Commissioner, Mysore and others reported in 1992(3) Kar. Law Journal page 760; Smt. Shantamma and others v. Deputy Commissioner, Shimoga and others reported in 1990(3) Kar. Law Journal (supp.) 495 (HC) as also the judgment of the Apex Court rendered in the matter of K.T. Huchegowda v. Deputy Commissioner and others reported in , 1994(3) Supreme Court Cases 536 and tried to substantiate that even if the land is given by way of lease, the lease should also be considered as grant as contemplated under Section 3(b) of the PTCL Act.

However, the said argument is countered by learned counsel for petitioner, Sri Rudra Gowda, by relying upon the judgment rendered by the Constitution Bench of the Apex Court in the matter of Padma Sundara Rao (dead) and others v. State of Tamil Nadu and others reported in , (2002) 3 SCC 533, wherein Apex Court has observed at para No. 14 asunder:

"14. While interpreting a provision the court only interprets the law and cannot legislate it. If a provision of law is misused and subjected to the abuse of process of law, it is for the legislature to amend, modify or repeal it, if deemed necessary. (See Rishabh Agro Industries Ltd. v. P.N.B. Capital Services Ltd. (, 2000 5 SCC 515)). The legislative casus omissus cannot be supplied by judicial interpretative process. Language of Section 6(1) is plain and unambiguous. There is no scope for reading something into it, as was done in Narasimhaiah case (, (1996) 3 SCC 88). In Nanjudaiah case (, (1996) 10 SCC 619) the period was further stretched to have the time period run from date of service of the High Court''s order. Such a view cannot be reconciled with the language of Section 6(1). If the view is accepted it would mean that a case can be covered by not only clause (i) and/or clause (ii) of the proviso to Section 6(1), but also by a non-prescribed period. Same can never be the legislative intent."

Learned counsel tried to substantiate that the aforesaid judgment would not entitle respondent No. 3 in claiming the land in question as the land, which was originally granted in favour of his grandfather, for the reason that the statutory provisions in the PTCL Act did not include the leasehold rights of a lessee, though he belongs to the denomination of ''Schedule Caste'' and lease cannot be considered as grant under Section 3(b) of the PTCL Act.

In fact, the Apex Court in Padma Sundara Rao''s case (supra) while considering the manner in which a provision of law will has to be interpreted, has observed that it is not within the domain of the Courts to legislate and extend the horizon of interpretation provided in the statute to include those of the subjects, which would not come within the ambit of the said statutory provision and thereby, should give legislative colour to the decision rendered by them. In the facts and circumstances of the case, this Court is unable to accept the finding of the Assistant Commissioner and Deputy Commissioner in treating the leasehold right of Lachmappa @ Barmappa, the grandfather of respondent No. 3 herein, as the absolute grant made in his favour and thereby, invoking the provisions of the PTCL Act in restoring the land purchased by the petitioner herein, in favour of Smt. Bheemakka and on her demise, in favour of respondent No. 3, as the same is erroneous. Hence, the order passed by respondent No. 1 and the judgment rendered by respondent No. 2 are required to be set aside. While doing so, it is observed that if the possession of the petitioner herein in respect of the land in question is not beyond 30 years from the date of his purchase, it is open for the State Government to initiate appropriate proceedings against him for claiming the said land.

With aforesaid observations, this writ petition is allowed. The judgment passed by respondent No. 1 in case No. SC/ST.62/86-87 dated 20.09.2010 confirming the order passed by respondent No. 2 in case No. PTCL 325 and 326/79-80 dated 14.03.1986, in so far as it pertains to petitioner''s land, is hereby quashed.