KARNATAKA HIGH COURT JUDGEMENT

SOURCE: http://164.100.80.145:8080/dspace/bitstream/123456789/406671/1/WP12860-07-07-07-2010.pdf

SMT. R. DHANALAKSHMI VS. SRI. SANDEEP KANGONKAR

Date of Judgement: 07/07/2010

HO’NBLE JUSTICE: ANAND BYRAREDDY, J.

WRIT PETITION NO. 12860 OF 2007 (SC/ST)

ORDER

Heard the learned Counsel for the petitioner and the learned Counsel for the
respondents 1 and 2 and the learned Government Advocate.

2. The facts briefly stated are as follows: The petitioner claims to belong to a Scheduled
Caste and by virtue of the same, had applied to the Bangalore Development Authority
(hereinafter referred to as 'the BDA' for brevity) for the grant of a house site, under a
quota reserved for persons belonging to Scheduled Castes. The petitioner accordingly
was said to have been allotted site No. 4, BM 416, Old Madras Road-Banaswadi Road
Layout, Bangalore, measuring 60 feet x 40 feet, under an allotment letter dated 23-1-
1998. The BDA executed a lease-cum-sale agreement on 20-6-1998 and had issued a
possession certificate as on 31-7-1998. The petitioner was prohibited from alienating
the property for ten years during the term of the lease. It is the petitioner's case that
respondent 1 had induced the petitioner to enter into an agreement of sale in respect of
the said site and accordingly an agreement of sale was executed by the petitioner in
favour of respondent 1 as on 15-10-1999 for a sale consideration of Rs. 5.00 lakhs. An
advance of Rs. 4.50 lakhs was received and the balance amount of Rs. 50,000/- was to
be paid on the date of execution of the sale deed and registration thereof. In this regard,
a post-dated cheque is said to have been issued by respondent 1. The petitioner parted
with the original documents, as well as physical possession of the site. The petitioner
had also executed a power of attorney authorising respondent 1 to execute and register
the sale deed. It transpires that by virtue of the agreement and the power of attorney,
respondent 1 had executed an absolute sale deed in favour of his wife, respondent 2
herein as on 8-12-2005. The petitioner claims that this was without the knowledge of
the petitioner. Immediately upon coming to know of the transaction, the petitioner is
said to have got issued a legal notice to respondent 1, calling upon him to cancel the
transaction and to restore the site to the petitioner as the same was in violation of the
lease-cum-sale agreement executed by the BDA and the Bangalore Development
Authority (Allotment of Sites) Rules, 1984 (hereinafter referred to as 'the BDA Rules' for
brevity) as well as the provisions of the Karnataka Scheduled Castes and Scheduled
Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 (hereinafter referred to as
'the KPTCL Act' for brevity). The respondents having negated the demand of the
petitioner the petitioner was constrained to file an application on 30-4-2007 before the
Assistant Commissioner, Bangalore North Sub-Division, respondent 3 seeking
restoration of the said site as the transaction was violative of the provisions of the
KPTCL Act. The said authority had rejected the application by an order dated 5-5-2007
and the same having been carried in appeal before the Deputy Commissioner, the
appeal has been dismissed as on 6-7-2007. It is in this background that the present writ
petition is filed.

3. The learned Counsel for the petitioner would submit that the view taken by the
authorities is that the provisions of the KPTCL Act would not apply to the present
transaction. He would submit that having regard to the fact that the site in question was
allotted to the petitioner only on account of the fact that she belonged to a Scheduled
Caste, under a special quota, and since the KPTCL Act does not make a distinction
between agricultural land and a building site, as laid down by this Court, the provisions
of the KPTCL Act clearly stood attracted and the allotment in favour of the petitioner did
require to be protected and therefore, the alienation ought to have been set aside even if
it was for a consideration since the transaction was not preceded by a prior sanction of
the State Government as required under the KPTCL Act. The added circumstance that
the transaction has taken place when there was a prohibition under the lease-cum-sale
agreement and since the wide definition applied to 'alienation' including an agreement
of sale, the illegality is compounded and therefore, the transaction has to be set at
naught. It is further contended that the narrow view sought to be taken by the
authorities that since the site in question is not a grant or allotment of land under the
Mysore Land Revenue Rules, 1960, or under the Karnataka Land Grant Rules, 1969 etc.,
is not in accordance with the settled legal position and notwithstanding that the
allotment is made by the BDA, which is constituted under a special statute, governed by
other rules, the petitioner is yet to be protected for otherwise, the very purpose and
object of the Act would be defeated. The learned Counsel seeks to place reliance on the
following judgments:

(i) B.M. Hanumanthappa v Deputy Commissioner, Shimoga and Others, 1990(2) Kar. L.J. 401;

(ii) K.T. Huchegowda v Deputy Commissioner and Others, 1996(7) Kar. L.J. 120 (SC): (1994)3 SCC
536: ILR 1994 Kar. 1839 (SC).

(iii) K.N. Rame Gowda (dead) by L.Rs v Assistant Commissioner, Sakaleshpur Sub-Division, Hassan
District and Others, 1994(5) Kar. L.J. 468.

(iv) Kariyappa v The Assistant Commissioner, Hassan Sub-Division, Hassan and Others, 1997(5)
Kar. L.J. 265: ILR 1997 Kar. 1723.

(v) Smt. Noorunisa Begum v Muniobalappa and Others, 2001(6) Kar. L.J. 465 (DB): ILR 2001 Kar.
3753 (DB).

4. Per contra, the learned Counsel for respondents 1 and 2 would submit that the writ
petition is misconceived and the authorities have rightly rejected the application of the
petitioner seeking to invoke the provisions of the KPTCL Act. It is stated that the
agreement of sale, is a willful act on the part of the petitioner and is admittedly a
profitable transaction. The claim that the agreement was executed upon the inducement
of respondent 1 is belied by the fact that neither the agreement nor the power of
attorney were sought to be cancelled at any point of time and having regard to the
several years that have separated the agreement of sale and the sale deed ultimately
executed in favour of respondent 2 cannot be faulted and there can be no doubt as to
the transaction being to the enlightened knowledge of the petitioner and her husband.
The learned Government Advocate would submit that 'granted land' is defined under
KPTCL Act and it would include land, which is allotted or granted under any law relating
to agrarian reforms or land ceilings or abolition of inams other than relating to
hereditary offices or rights. Hence, merely because the petitioner belongs to a Scheduled
Caste and has been allotted a building site under the BDA Rules, which is for a market
price, it cannot be said that the provisions of the KPTCL Act can be attracted and
therefore, he would seek to justify the impugned orders.

5. Before proceeding to address the above contentions, it is necessary to keep in view

the law as settled on certain aspects by this Court as well as the Apex Court in the
several decisions which have been cited by the learned Counsel for the petitioner.

Having regard to the grounds on which the petition is filed, the primary question that
would have to be addressed is, whether the site in question could be regarded as
granted land for the purposes of KPTCL Act and the incidental question would be,
whether the authorities made the said Act could set aside the transaction of sale and
restore the site in favour of the petitioner.

In this regard, strong reliance is placed on the case of Kariyappa. In the said decision,
the sale of land measuring about 277 square yards in a Village in Hassan Taluk, Hassan
District, was sought to be questioned as being violative of the provisions of the KPTCL
Act. The authorities had held that the provisions of the Act were not attracted since the
land in question was a house site. A learned Single Judge of this Court while referring to
the definition of 'granted land' under the Act, held that the definition did not make any
distinction between a house site or any other type of land. It was held that a house site
is also land though limited in extent and further laid down that there was no indication
under the Act, that a house site or non-agricultural land would be excluded from the
purview of the Act. It was held that the object of the KPTCL Act is to prohibit the
transfer of granted land and to declare all alienations made in violation of the terms of
the grant as void and to restore possession of such land to the grantee. While observing
that, in that case, since it was not found whether the land in question was granted for an
upset price or reduced upset price or free of cost, the matter stood remanded for
consideration of the same by the authorities. The learned Counsel would submit that the
said decision has been referred to with approval and has been applied by a Division
Bench of this Court in the case of Smt. Noorunisa Begum. The Division Bench has held
that adopting the rule of purposive construction, there was no warrant to restrict the
scope and ambit of the expression 'land' only to agricultural lands. Even the
unauthorised alienation of small portions of land, allotted for house site purposes would
stand covered under the provisions of KPTCL Act.

In the light of the above, it is true that the 'granted land' as defined under the KPTCL Act
reads as follows:-

"3. (1) (b) "Granted land" means any land granted by the Government to a person
belonging to any of the Scheduled Castes or the Scheduled Tribes and includes land
allotted or granted to such person under the relevant law for the time being in force
relating to agrarian reforms or land ceilings or abolition of inams, other than that
relating to hereditary offices or rights and the word "Granted" shall be construed
accordingly".
Sub-section (2) of Section 3 lays down that words and expressions not defined under
the Act shall have the meaning assigned to them under the Karnataka Land Revenue Act,
1964 (hereinafter referred to as the 'KLR Act' for brevity). Under the KLR Act, land' is
defined and there are four classes of land which are also defined, namely, 'dry land',
''wet land', 'garden land' and 'plantation land'. The said KLR Act also defines 'building
site' as follows:-

"(2) "Building site" means a plot of land held for building purposes, whether any
building is actually erected thereupon or not, and includes the open ground or
Courtyard enclosed by, or adjacent to, any building erected hereupon".

Therefore, it can safely be said that the land' or 'granted land' is not the same as a
building site'. Secondly, the KPTCL Act contemplates the land granted by the
Government.

In the cases referred to hereinabove, though this Court has, by a liberal interpretation,
held that the granted land would also include a ''house site', the said house sites in those
cases were apparently granted by the Government, and probably free of cost or for an
upset price.

In the instant case, there is an indication that the site in question was allotted to
the petitioner because she belonged to a Scheduled Caste under a special quota.
However, this was under the provisions of the Bangalore Development Authority
(Allotment of Sites) Rules, 1984. Under the Rules, apart from providing for
allotment of sites under a special quota to persons belonging to Scheduled Castes
and Scheduled Tribes, the Rules contemplate such special quotas for various
categories of persons including the backward tribes, economically weaker
sections, physically handicapped persons, defendants of deceased servicemen.
State Government employees, persons who have outstanding achievements in the
field of arts, science or sports, employees of Central Government and Public
Sector Undertakings etc. The further concession that is provided to persons
belonging to the Scheduled Caste is that in the selection of applicants for
allotment of sites and reservation of sites, while considering the applications for
allotment on merit, the criteria, whether the person was married or single and
has dependent children and whether the income of the applicant and his capacity
to purchase a site and build a house thereon, is not considered is the case of
applicants belonging to Scheduled Caste. Thus, the allotment made is for a market
price. The petitioner after having paid the consideration in respect of such
allotment has willfully executed an agreement of sale, in favour of respondent 1
for a profit. This was in violation of the terms of allotment and Rule 14 of the BDA
Rules, which prescribes that if it is so alienated, the authority namely, the BDA
could, after due notice, cancel the allotment, resume the site, and forfeit the
amount paid by the lessee. This is a consequence prescribed under the Rules. The
BDA not having initiated any such action, in respect of alienation admittedly made
under the agreement of sale is not the subject-matter of this writ petition. But, it
is necessary to refer to the above rigour of the Rules to distinguish the case from
the decision referred to hereinabove to hold that the BDA Act and Rules under
which the allotment was made, is self-contained and it would be incongruous to
apply the provisions of the KPTCL Act, where it is contemplated that the State
Government resumes any granted land, which is alienated in violation of any Rule
or after the coming into force of the Act without the sanction of the Government.
Further, the petitioner candidly admitting that there was an agreement of sale,
under which possession was parted within favour of respondent 1, in violation of
the lease-cum-sale agreement and the law, cannot seek the intervention of this
Court, merely on the ground that the petitioner belongs to a Scheduled Caste and
hence, the provisions of the Act could be invoked to restore the property to the
petitioner. As already pointed out, the consequence of the petitioner's violation of
the relevant rules entailed the resumption of land by the BDA and not the State
Government and therefore, the impugned orders do not warrant interference by
this Court.

Insofar as the other judgments which are referred to are concerned, they are germane
to the provisions of the KPTCL Act. In my opinion, the site in question cannot be said to
be covered under the provisions of the said Act, and hence, the impugned orders do not
warrant interference by this Court. The petition stands dismissed.