SHANKARAGOUDA Vs. DEPUTY COMMISSIONER, DHARWAD AND OTHERS

JUDGEMENT

(1.) PETITIONER is the owner of the land in question. The said land granted to one Hanamantappa, who executed a Will in favour of the petitioner. Petitioner filed a suit in O.S. No. 413/1997 for declaration and injunction. The suit was decreed. Thereafter, respondents No. 3 to 5 have approached the Assistant Commissioner under the provisions of the Karnataka Scheduled Caste and Scheduled Tribes (Prohibition of Certain Lands) Act, 1978 (hereinafter referred as "the Act ) alleging that the original grantee executed a Will in favour of the petitioner in contravention of the Act. The Assistant Commissioner in PTCL/CR/16/1997, dated 07.12.2012 has rejected the claim. Against which, respondents No. 3 to 5, instead of preferring an appeal, filed an application before the first respondent -Deputy Commissioner. The Deputy Commissioner, Dharwad in PTCL/APCR. No. 6/2003 -04, dated 06.11.2004 set aside the order of the second respondent -Assistant Commissioner and directed to resume and restore the land as per the provisions of law. Hence this petition. The grounds urged by the petitioner is that the authority lacks jurisdiction, since section 5(A) of the Act enables the aggrieved person in a case, where the Assistant Commissioner directed to take possession of land under clause (a) of sub -Section (1) of Section 5 of the Act or to restore the land under clause (b) of the said sub Section. In the present case, the Assistant Commissioner rejected the claim. Hence, the appeal could not have been entertained by the Deputy Commissioner. Secondly, the Will executed in favour of the petitioner is saved by the definition of section 3(e) of the Act. Any sale made or any transfer made is contravention and explanation given to the family partition or testamentary disposition. Since the original grantee executed a testamentary document in favour of the petitioner, this definition saves the petitioner. Under the circumstance, the Deputy Commissioner should have dismissed the appeal. In support of the submission, learned counsel referred a judgment reported in Muniswamy Vs. State of Karnataka and Others, AIR 1998 Kant 281 wherein it is held that section 5(A) was not available in case of the dismissal by the Assistant Commissioner. It was further held that in a case, petition dismissed by the Assistant Commissioner, the aggrieved person should have approached this Court under Article 226 of the Constitution of India. He referred another judgment in 1989 (1) 1 Kar. L.J. 105 in support of the definition under section 3(e) of the Act.

(2.) THE learned Government Advocate submits that any transaction is prohibited under the provisions and the explanation given to only family partition or testamentary disposition and the testamentary disposition has to be read in case family partition. The petitioner is not a person belongs to the family of the grantee and it attracts Section 3(e) contravention.

(3.) I have heard both. The grant was made to one Hanamantappa, who is said to be the father of the respondents No. 3 to 5, on 21.03.1963 with a condition that land shall not be alienated for a period of 20 years. The said land was transferred in favour of the petitioner contrary to the conditions therein. The petitioner claims that the transfer is saved by Section 3(e) of the Act and the same cannot be accepted, since he does not belong to the family of the grantee. The definition has to be understood in consonance with the aims and objects of the Act. The definition reads that any other transaction not being partition among the members of the family or testamentary disposition has to be read as or it is testamentary disposition. Here the petitioner shall not come under the family members or deeds executed in his favour not relates to the family partition. Any transaction which includes the transfer that contrary to Section 4 of the Act. Under this circumstance, the Assistant Commissioner has committed an error in rejecting the case. When an Act is framed by legislation with specific provision to protect a class of people and officers like Assistant Commissioner were authorized to deal with the subject matter. While doing so, such officer should take such possible cane by going through the provisions of law in order to achieve the object. The submission of the learned counsel for petitioner that section 5(A) does not enable the Deputy Commissioner to pass the order, since the Assistant Commissioner has dismissed the claim filed by the grantee. Section 5(A) does not enable, since it was brought in the year 03.04.1984 by an amendment. Section 1(A) was brought in the year 1992, which enables either of the party means either the grantee or purchaser could approach the Deputy Commissioner. Under the said provisions, rightly the grantees have preferred an appeal and the Deputy Commissioner has jurisdiction to decide the same. Accordingly, I do not find any reasons to interfere with the order passed by the Deputy Commissioner. The judgments referred are not applicable. The date of grant and date of Will executed is not in dispute. Hence, the transfer is also not in dispute. Accordingly, it attracts the provisions of law. Hence, I find no good reasons to interfere. Accordingly, the order of the Deputy Commissioner is confirmed. Authorities are directed to resume and restore the land, in accordance with law within three months from the date of receipt of certified copy of this order.