In the High Court of Karnataka, Dharwad Bench

1 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 11 TH DAY OF DECEMBER 2013 BEFORE THE HON’BLE MR. JUSTICE L. NARAYANA SWAMY WRIT PETITION No.19619/2007 (SC ST) BETWEEN: CHANNAPPA @ DUNDAPPA HONNAPUR, S/O HANAMANTHAPPA HONNAPUR, AGE: 63 YEARS, OCC: AGRICULTURE, R/O G.BASAVANKOPPA, TQ.KALAGATAGI, DIST: DHARWAD. … PETITIONER (BY SRI.A.C.CHAKALABBI, ADV.) AND: 1. THE DEPUTY COMMISSIONER, DHARWAD DISTRICT, DHARWAD. 2. THE ASSISTANT COMMISSIONER, DHARWAD SUB-DIVISION, DHARWAD. 3. THE TAHASILDAR, KALAGATAGI, TALUK: KALAGATAGI, DIST: DHARWAD. 4. SHIVAPPA HARIJAN SINCE DECEASED BY HIS LRs. 4a. SMT. YALLAWWA HARIJAN, W/O SHIVAPPA HARIJAN, AGE: 57 YEARS ,OCC: HOUSEHOLD WORK, 4b. HANAMANTHAPPA HARIJAN, 2 S/O LATE SHIVAPPA, AGE: 42 YEARS, OCC: COOLIE WORK, 4c. KALLAPPA S/O SHIVAPPA HARIJAN, AGE: 38 YEARS, OCC: COOLIE WORK, 5. FAKIRAPPA HARIJAN, S/O LAXMAN HARIJAN, AGE: 58 YEARS, OCC: AGRICULTURE, RESPONDENTS 4a TO 4c AND 5 ARE RESIDENT OF G.BASAVANKOPPA, TALUK & DIST: DHARWAD. … RESPONDENTS (BY SRI.K.S.PATIL, HCGP FOR R1 TO R3, SMT.PADMAVATHI, S. SAVANUR AND SRI.ARUN JOSHI, ADVS. FOR R4a-c AND R5) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 27.10.2007 PASSED BY THE 1 ST RESPONDENT VIDE ANNEXURE-G AND ETC. THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING: ORDER With consent of learned counsel appearing for both the parties, the petition is taken up for final disposal. 2. The petitioner is the purchaser. The land was granted to respondent No.4 in the year 1960 with a condition that, it shall 3 not be sold within 15 years. After completion of the stipulated period, the petitioner has purchased the property and the conditions stipulated in 1960 Rules are not applicable. Hence, there is no contravention of any provisions of law. The second ground urged by the petitioner is that the Deputy Commissioner has passed the order against the dead person. The purchaser died on 03.08.2004 and the appeal was disposed in the year 2007. In view of the fact that the purchaser died prior to the order passed by the Deputy Commissioner, the order is bad in law. 3. The learned Government Pleader submitted to dismiss this petition on the ground that grant was made with a condition of 20 years and sale has taken place prior to the stipulated period and further the sale, even assuming that it has taken place after the completion of 15 years, it hits by Section 4(2) of the Karnataka Scheduled Caste and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 (hereinafter referred to as ‘P.T.C.L. Act’). Since the petitioner states that the order of the Deputy Commissioner was passed against the dead person, but counsel representing the deceased failed to bring to the notice of the 4 Deputy Commissioner. Hence, there is lapse on the part of the petitioner. 4. I have heard learned counsel appearing for both the parties. 5. The lapse in the procedural aspects namely, the order of the Deputy Commissioner on the dead person is a valid point. Even thereafter, it cannot be stated that the counsel who represents the dead person has not brought to the notice of the Court. This Court after noticing the fact that the Deputy Commissioner passed an order against the dead person, has given fullest opportunity to the petitioner to defend his case as a purchaser. It is the only submission of the purchaser that the sale was taken place after the stipulated period of 15 years. Except this, the purchaser is not in a position to defend his case. The land was granted in the year 1960 with a condition that it shall not be alienated within the period of 15 years. The sale taken place, as per the submission of the petitioner, is after the completion of 15 years. However, by the time the sale was taken place, the P.T.C.L. Act came into force on 01.01.1979. Section 4(2) of the P.T.C.L Act, prohibits the sale without the previous permission of the 5 Government. The purchaser has not taken prior permission from the Government. Under these circumstances, the sale that has taken place is null and void in the eye of law. 6. The person who approaches this Court has to satisfy as to what his case would have been in the absence of procedural irregularities, said to have been committed by the authority. He should also state, what would have been his case, if he had been given the fullest opportunity. Lastly, he should satisfy what would have been his case, if the case is remitted for reconsideration after rectifying the procedural irregularities. Unless these things are satisfied to this Court, it is not automatic to remit the matter on the ground of procedural irregularities. It is also the duty of the person, who approaches this Court to state about the substantial procedural lapses, if any, by which, he has sustained loss of valuable right. The relief under Article 226 of the Constitution of India is no doubt an extraordinary relief but at the same time, it is a discretionary jurisdiction and this Court also exercises equity jurisdiction. While seeking such a relief, it is the duty of the petitioner to substantiate prima facie merits of his case in order to consider his case either to remand or to dispose of here itself. 6 7. In the instant case, petitioner states that the Assistant Commissioner has passed order as against a dead person. No doubt, as it is stated earlier, it is per se a wrong order. But the counsel representing the petitioner kept quiet till disposal of the case. In considering the case as to order passed as against a dead person, that itself is not a substantive ground unless it is shown to this Court what is the injustice caused in not bringing the L.Rs. of the party. 8. Under these circumstances, though the order is as against the dead person, but that procedural lapse itself is not a ground to allow this petition in the absence of the petitioner making out his case prima facie and the injustice that is caused to him as stated above. Hence I pass the following order: ORDER The writ petition is rejected. The order of the Deputy Commissioner is confirmed. The Assistant Commissioner is directed to resume and restore the land in favour of the grantee within a period of six months. SD/- JUDGE MBS/-.

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