IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT DHARWAD : PRESENT : THE HON BLE MR. VIKRAMAJIT SEN, CHIEF JUSTICE

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1 1 IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT DHARWAD DATED THIS THE 27 TH DAY OF SEPTEMBER, 2012 : PRESENT : THE HON BLE MR. VIKRAMAJIT SEN, CHIEF JUSTICE BETWEEN AND THE HON BLE MR. JUSTICE N.K. PATIL W.A. NO.3988/2011 (SC/ST) Appu, S/o Dakhalu Gouli, Age: 60 Years, Occ: Agriculture, R/o. Chandragiri, (Kambarganavi) Taluk & District Dharwad. (By Shri. Suresh.P.Hudedagaddi, for M/s Space Law Associates. Advocates)... Appellant AND: 1. The State of Karnataka, Rep. by Secretary, Revenue Department, M S Building, Bangalore. 2. The Deputy Commissioner Dharwad, D C Compound, Dharwad. 3. The Assistant Commissioner Dharwad, Dharwad. 4. The Tahasildar, Dharwad.

2 2 5. Smt. Fakkiravva, W/o. Yallappa Kushambi, Age: Major Occ: Household Work, R/o. Kalakeri, Taluk & District Dharwad.... Respondents (By Shri. Mahesh Wodeyar, Addl. Govt. Advocate for R1-4, Shri. Anil Kale, Advocate for R5.) This Writ Appeal is filed U/S 4 of the Karnataka High Court Act praying to set aside the order passed in the Writ Petition No.62639/2011(SC/ST) dated 15/04/2011. This Writ Appeal coming on for Preliminary Hearing, this day, Chief Justice, delivered the following: : J U D G M E N T: VIKRAMAJIT SEN, CJ (Oral) This appeal assails the order of the learned Single Judge dated The petitioner-appellant is the purchaser of land that had been granted or as contended by the appellant, purchased by the original grantee on The Grantee is the 5 th respondent in these proceedings. 2. The first contention is that Respondent No.5 belongs to the Valmiki community which was included as recently as on

3 in the Presidential Orders The learned Single Judge has considered this question threadbare and has applied the decision of the Hon ble Supreme Court in Laxman Siddappa Naik Vs. Kattimani Chandappa Jampanna and others reported in AIR 1968 Supreme Court 929, in which it has been laid down that the Nayak community, spelt in any manner, is a Scheduled Tribe. The question of retrospectivity of the enumeration of Scheduled Castes and Scheduled Tribes in the Presidential Order has been considered by the Full Bench in Sri.Jayanna Vs. Deputy Commissioner Chitradurga W.P.No.28263/2004 in the Judgment dated 3 rd August Broadly stated, the conclusion is that any introduction in the Presidential Order is essentially by way of adding synonyms or different spellings; that the new nomenclature shall accordingly have retrospective effect. In any event, this question has been determined by the decision in Laxman Siddappa Nayak s case. Therefore, the contention that the community to which the original grantee belongs was not either Scheduled Tribe as in the present case, or Scheduled Caste in other cases, does not hold any water.

4 4 3. The next contention is that, the property was purchased in 1991, presumably before the introduction in the Presidential Order of Valmiki as a Scheduled Caste. It is admitted that permission or clearance under Section 4(2) of the Scheduled Caste and Scheduled Tribe (Prohibition of Transfer of Certain Lands) Act, 1978 has not been taken. It has been held in catena of cases that once it is admitted that the grantee belongs to Scheduled Caste or Scheduled Tribe community, clearance must be taken under Section 4(2) and because of the presumptions contained in Section 5(3), the burden of proof rests on the purchaser to establish that the grantee does not belong to any Scheduled Caste or Scheduled Tribe. Since no clearance has been obtained, by statutory force, the transaction on which the appellant bases his title is null and void. 4. The next contention is that since the proceedings were filed by the original grantee after the lapse of 17 years they ought not to have been entertained on the ground of laches or limitation. This question has also been considered in detail by the Division Bench in G.M. Venkatareddy Vs. Deputy Commissioner Kolar, Writ Appeal No.1736/2009 on

5 5 23/5/2012. In essence, it has been held that the plea or claim of adverse possession is not available where the possession is not open and hostile to the previous owner, and that this can never be possible where that person s claim is predicated on a document such as sale deed which is executed by the person against whom adverse possession is claimed. 5. In this view of the matter, we are in complete agreement with the impugned order passed by the learned Single Judge. 6. It is also noted that the costs of Rs.10,000/- imposed by the learned Single Judge till date have not been paid. That would constitute sufficient reason to dismiss the appeal, but since the learned counsel for appellant submits that stay orders had earlier been granted, we prefer to pronounce judgment on the merits of the Appeal itself. However, costs of Rs.10,000/- be paid within 60 days from today. 7. Learned counsel for the appellant states that the original grant/saguvali chit, has not been produced. Once again, emphasis should be drawn on Section 5 of PTCL Act which imposes the burden of proof on the purchaser wherever the

6 6 respondent/grantee belongs to Scheduled Caste or Scheduled Tribe Community. The contention that the information has been sought for under the RTI, in appellate proceedings stage as we are presently seized of, is therefore, not tenable. Counsel for the appellant states that it may well transpire that the land that has been purchased by the appellant had been allotted to the grantee by way of a general grant. It appears to us that it was the bounden duty of the petitioner-appellant to produce all documentation and material which he has sought to rely at the initial stage of the proceedings. It would be inappropriate for us to adjourn the Appeal. 8. In these circumstances, the only relief which we may be willing to extend to the petitioner is to direct Respondents 1 to 4 to initiate and complete the taking over of possession of the land in question forthwith and not later than 30 days from today. However, possession of the land shall be retained by the State for a period of four months from today and thereafter, unless the orders to the contrary had been received from the Hon ble Supreme Court, possession should be handed back to the original grantee, or the legal representatives.

7 7 payable within sixty days. The Appeal is dismissed with further costs of Rs.10,000/- SD/- CHIEF JUSTICE Tsn/Vr SD/- JUDGE