Karnataka SC ST Act 1978| Alleged Encroachment Of Granted Land Not Within Definition Of ‘Transfer’: High Court

The Bench of Justice Sachin Shankar Magadum observed that Authorities having regard to the facts and circumstances of the case do not have authority to invoke jurisdiction under the provisions of the PTCL Act.

The petitioner claimed to be the absolute owner of a 5 guntas house site granted by the Government through the Tahasildar, Kundapur, under Section 94(c) of the Karnataka Land Revenue Act. The 4th respondent asserted ownership of 61 acres and 34 acres of land, supported by a saguvali chit issued on February 27, 1976. Alleging encroachment, the 4th respondent filed a petition under Section 5 of the PTCL Act for eviction, but it was rejected by the Assistant Commissioner. The 4th respondent appealed to the Deputy Commissioner, who directed the petitioner to hand over vacant possession of the disputed property. A complaint was also lodged under the SC/ST (Prevention of Atrocities) Act on November 13, 2013. Now, the petitioner has filed a writ petition challenging the Deputy Commissioner's eviction order in favor of the 4th respondent.

Advocate K. Shrihari appeared for the Petitioner, Advocate Venkatasathyanarayana (HCGP) appeared for Respondent 1-3 and Advocate H. Jayakar Shetty appeared for Respondent 4.

The petitioner's counsel argued that the Deputy Commissioner erred in exercising jurisdiction under the PTCL Act, as the case of encroachment does not fall within the Act's definition of transfer. The counsel stated that the disputed possession, without any transaction like sale or gift, should be considered as the possession of a trespasser, not falling within the definition of transfer.

On the other hand, the 4th respondent's counsel countered these arguments and argued that Section 5(3) of the PTCL Act covers all disputes related to possession of a granted land. Even if there is no instrument of grant, possession of the land by anyone other than the original grantee is deemed to be in contravention of the PTCL Act and the grant conditions.

The issue before the court was “Whether the Authorities having regard to the facts and circumstances of the case have authority to invoke jurisdiction under the provisions of the PTCL Act and decide the rival claims of the parties herein?”

The Court noted that the petitioner and the 4th respondent both claimed title to different properties. The 4th respondent alleged that the petitioner had encroached upon the granted land and filed a restoration petition under the PTCL Act. However, the Court found that the petitioner and the 4th respondent were making separate claims over their respective properties, and there were no rival claims to the same land.

“The definition of transfer as indicated in Section 2(e) clearly indicates that Section 4 comes into play provided there is a transfer by means of gift, exchange, mortgage, lease or any other transactions, which squarely fall within the definition of a transfer.”

Since the petitioner and the 4th respondent were making claims of ownership and no transfer was involved, the court held that the PTCL Act was not applicable in this case. It concluded that the 4th respondent could not have maintained a restoration petition under Section 5 of the Act for encroachment, and any dispute regarding encroachment should be resolved in a competent Civil Court.

“The 3rd respondent – Deputy Commissioner has no materials on record, which was found to be conclusive to arrive at a conclusion that the petitioner is guilty of encroaching over a granted land.”

The Court held that the Deputy Commissioner erred in passing the restoration order without jurisdiction, and thus, the order was set aside. The writ petition was allowed in favor of the petitioner.

Cause Title: Chikkayya Devadiga v. State of Karnataka & Ors.

Click here to read/download the Order