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G.K. Mallikarjunappa Vs. the Deputy Commissioner and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKarnataka High Court
Decided On
Case NumberWrit Petition No. 46614 of 2002
Judge
Reported in2005(2)KarLJ205
ActsKarnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 - Sections 5; Karnataka Land Revenue Act, 1964
AppellantG.K. Mallikarjunappa
RespondentThe Deputy Commissioner and ors.
Appellant AdvocateS.V. Prakash, ;S.G. Kadadakatti and ;Manjunath H.R., Advs.
Respondent AdvocateM.G. Anjanamurthy, High Court Government Pleader for Respondents-1, 2 and 3, ;M.V. Hiremath, ;Neelakantha R.M. and ;Shivananda D.S., Advs. for Respondent-3
DispositionPetition dismissed
Excerpt:
.....it is the appellant who has deserted her. - 4. the appeal by the petitioner-purchaser to the deputy commissioner, having been failed, he had approached this court by filing a writ petition in w. that the orders of the assistant commissioner and the deputy commissioner were set aside precisely for the reason that the orders were not backed by clear and categorical finding with regard to the nature of the grant; that even the available records no where mentions that the grant was a free grant and in the absence of material to give a finding of the nature given by the deputy commissioner, it should be taken that there is no such finding and if so the order is bad for being in contravention of the principles laid down by this court in pedda reddy v. 15. it must be borne in mind that..........containing the particulars of the person, grant, caste of the person etc. the mutation, index of land records and other records relating to the land and the extract from the same were also before the deputy commissioner. learned government pleader submitted that based on these records, the deputy commissioner has rightly drawn an inference that the grant was in favour of a person belonging to scheduled caste community and that it was a free grant with a condition that the land should not be transferred for a period of fifteen years; that the sale being within the period of fifteen years, the provisions of the act are necessarily attracted and therefore the order impugned does not call for interference.14. while it is true that the original records were not available, nonavailability of.....
Judgment:
ORDER

D.V. Shylendra Kumar, J.

1. This writ petition before this Court by the purchaser of a granted land is the second round of litigation. The subject-matter land, a extent of 3 acres 31 guntas in Sy. No. 51 of Ganadakatte Village, Channagiri Taluk in Davangere District, is a piece of agricultural land which had been granted in favour of one Kariyappa-father of the third respondent -a person belonging to Adi Karnataka Community [scheduled caste] in terms of grant/saguvall chit dated 6-2-1957. It is this land that the grantee had sold in favour of one Kariyappa -father of the writ petitioner. The question is as to whether the said sale transaction is hit by the provisions of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 (for short, 'the Act').

2. The son of the grantee Bhimappa third respondent herein - had filed an application before the Assistant Commissioner, praying for invalidation of the sale and for restoration of the land in his favour on the premise that the sale was in violation of the terms of the grant.

3. The application was registered and notice was issued to the petitioner, who was in possession of the land. The proceedings culminated in allowing the application in terms of the order dated 29-4-1992 and the sale was held void, as it was in violation of the condition of the grant that the land should not be alienated for a period of fifteen years and therefore directed resumption of the land in favour of the State and to restore it to the legal heir of the original grantee.

4. The appeal by the petitioner-purchaser to the Deputy Commissioner, having been failed, he had approached this Court by filing a writ petition in W.P. No. 17818 of 2000.

5. The said writ petition came to be allowed in terms of order dated 19-7-2000 and the orders passed by the Assistant Commissioner and the Deputy Commissioner were set aside and the matter was remanded to the Assistant Commissioner for fresh consideration. The reason for the interference was that the authorities had not given a clear and categorical finding that the grant of the land in question was a free grant, in which even alone the condition of fifteen years non-alienation could have been imposed and operated.

6. On such remand, the Assistant Commissioner took up the matter for fresh enquiry. The Tahsildar, who had been called upon to produce the relevant grant records, came up with a reply that such grant records were not available in his office and that it could have either been destroyed or sent to some other office for verification purpose etc. The Assistant Commissioner, notwithstanding a clear direction by this Court to peruse the records and to record a clear finding with regard to the nature of grant and the terms of the grant, and notwithstanding the mandatory duty enjoined on him in terms of the provisions of Sections 4 and 5 of the Act, simply rejected the application, holding that as the Tahsildar had not submitted the relevant records and the applicant had also not placed any such records to indicate the nature of grant and as such the applicant did not have any interest in the land in question and accordingly he is rejecting the application in terms of the order dated 31-10-2001.

7. Aggrieved applicant pursued the matter by way of appeal to the Deputy Commissioner. The Deputy Commissioner issued notices to the parties, held a fresh enquiry but was also faced with the same problem of non-availability of records. The Deputy Commissioner appears to have directed the Tahsildar concerned to submit the report regarding the position of the records and the Tahsildar while submitting the report though stated that the original records were not available, had forwarded extracts from the available related records. The Deputy Commissioner, after perusal of all such materials which were made available before him and on examining the rival contentions, in terms of the order dated 13-1-2002, a copy of which is produced at Annexure-B to the writ petition, allowed the appeal, setting aside the order passed by the Assistant Commissioner, and held that the grant was in favour of a person belonging to Scheduled Caste Community with a condition that the land should not be alienated for a period of fifteen years and that the sale having taken place within that period, the sale is required to be invalidated and the land resumed in favour of the State to restore the land to the legal heir of the original grantee. It is aggrieved by this order of the Deputy Commissioner, the present writ petition is filed.

8. I have heard Sri S.V. Prakash, learned Counsel for the petitioner, Sri M.G. Anjanamurthy, learned Government Pleader for respondents 1 and 2 and Sri M.V. Hiremath, learned Counsel for the third respondent.

9. Sri S.V. Prakash, learned Counsel for the petitioner, has urged his contentions. It is firstly submitted that the matter had come to this Court once earlier; that the orders of the Assistant Commissioner and the Deputy Commissioner were set aside precisely for the reason that the orders were not backed by clear and categorical finding with regard to the nature of the grant; that unless a finding with regard to the nature of the grant and the conditions of the grant are looked into and recorded, the validity of the transaction cannot be determined by applying the provisions of the Act; that notwithstanding such clear direction to the Assistant Commissioner, when the matter was being remanded to record such a finding, no such finding had been recorded; that while the Assistant Commissioner has rejected the application in the absence of any record to indicate positively in favour of the applicant, the Deputy Commissioner who had heard the matter has erroneously allowed the appeal and set aside the order passed by the Assistant Commissioner; that the Deputy Commissioner in fact had acted in violation of the principles of natural justice; that even in terms of the order sheet maintained by the Deputy Commissioner, a copy of which is produced at Annexure-C to the writ petition, while the matter had been heard on the last occasion on 21-6-2002 and had been reserved for orders, the Deputy Commissioner had embarked upon calling for a report from the Tahsildar concerned subsequent to this date and that based on the report and some records which had been submitted by the Tahsildar subsequent to the date of reserving the matter for orders, the Deputy Commissioner has perused them and based on that has recorded a finding, which is not sustainable; that the action on the part of the Deputy Commissioner in allowing the appeal is, therefore, in violation of the principles of natural justice, inasmuch as the petitioner was not made known about the contents of the report of the Tahsildar and as such the learned Counsel for the petitioner submitted that the order passed by the Deputy Commissioner is not sustainable and liable to be quashed.

10. It is also the further submission of learned Counsel for the petitioner that even the finding that has been recorded by the Deputy Commissioner to the effect that the grant was a free grant and with the condition of 15 years' non-alienation operating, is not based on the available records either; that in the absence of original grant records, the Deputy Commissioner could not have recorded such a finding; that even the available records no where mentions that the grant was a free grant and in the absence of material to give a finding of the nature given by the Deputy Commissioner, it should be taken that there is no such finding and if so the order is bad for being in contravention of the principles laid down by this Court in Pedda Reddy v. State of Karnataka, : ILR1993KAR551 . Learned Counsel for the petitioner submits that on both these aspects, the order requires to be set aside and the matter could be remanded for fresh consideration by the authority.

11. Sri M.V. Hiremath, learned Counsel appearing for the third respondent while seeks to sustain the order passed by the Deputy Commissioner, submits that the finding is based on the available records; that in the absence of original grant records, the authorities are entitled to look into the related records and documents and based on that the inference that the grant was with a condition of non-alienation for a period of fifteen years is warranted and sustainable and therefore the order impugned does not call for interference at the hands of this Court.

12. Sri M.G. Anjanamurthy, learned Government Pleader, appearing for the respondents 1 and 2, also supported the order passed by the Deputy Commissioner. He has also made available the records which are received from the Deputy Commissioner and which were available with the Deputy Commissioner during the appeal proceedings, and the records have been perused by all the Counsels appearing for the parties and I have also looked into these records.

13. While the original grant records are not available, what was available is the extract from the register pertaining to issue of saguvali chits containing the particulars of the person, grant, caste of the person etc. The mutation, index of land records and other records relating to the land and the extract from the same were also before the Deputy Commissioner. Learned Government Pleader submitted that based on these records, the Deputy Commissioner has rightly drawn an inference that the grant was in favour of a person belonging to Scheduled Caste Community and that it was a free grant with a condition that the land should not be transferred for a period of fifteen years; that the sale being within the period of fifteen years, the provisions of the Act are necessarily attracted and therefore the order impugned does not call for interference.

14. While it is true that the original records were not available, nonavailability of records such as original grant order, which are more than fifty years old itself cannot be the end of the matter. So long as the provisions of the Act are in force and the authorities namely, Assistant Commissioner and the Deputy Commissioner are required to look into the application filed under Section 5 of the Act, rejection of the application on simply recording that the grant records are not available, virtually amounts to dereliction of duty on the part of the Assistant Commissioner on whom this duty and responsibility is cast under the provisions of the Act. In fact as noticed in the order passed in the earlier round of litigation by the Assistant Commissioner, the Assistant Commissioner had occasion to peruse the available records and recorded a finding. However, when the matter had been remanded pursuant to the order passed by this Court in the earlier round of litigation, the Assistant Commissioner simply proceeds to draw an adverse inference against the applicant for rejecting the application as the Tahsildar has not produced any records and the applicant has also not placed any records before him to indicate the nature of grant and to prove that the transfer of land was in violation of the terms of the grant.

15. It must be borne in mind that the applicants are not called upon before the Assistant Commissioner to prove their case like in any adversary litigation. The Act is a piece of welfare legislation meant for protecting the interests of the downtrodden people and whose ignorance and vulnerability could have been taken advantage by others by knocking off the lands which were granted in favour of such persons by the Government and in most of such cases as a free grant, to the detriment of such grantees. A duty is cast upon the Assistant Commissioner, who is functioning under the Karnataka Land Revenue Act, 1964 and in fact he is a superior officer over Tahsildar, who normally maintain records, can examine all aspects of the matter and to take action under the provisions of the Act for the purpose of giving effect to the intention and object of the Act. It is to be noticed that the Assistant Commissioner can also take suo motu proceedings even when no applicant has come forward seeking for invalidation of a transfer of granted land in violation of the terms of the grant. When such is the scenario, the attitude on the part of the Assistant Commissioner to reject the application simply on the ground that the Tahsildar, who is his subordinate, has not forwarded the records or the applicant has not come forward with material to support the case, is a finding and decision wholly unwarranted and to be deprecated. It only shows dereliction of duty on the part of the Assistant Commissioner. It is for the authorities concerned to take note of this and to take appropriate action against such Assistant Commissioners who take shelter under frivolous and untenable grounds to reject the applications filed under the Act.

16. The Deputy Commissioner had examined all aspects of the matter. Insofar as the report of the Tahsildar is concerned, which undisputedly is submitted after the conclusion of the hearing, is only an effort to get the available records. I have perused the report and in the report except for saying that the records are not available for what reason and that in the absence of original grant records, available related records were being sent; nothing else is mentioned. The report is not a report on the merits of the case. It is a report giving explanation for not forwarding the original records and as to what is submitted to the Deputy Commissioner. The action on the part of the Deputy Commissioner is just and warranted. It is appreciable that the Deputy Commissioner - Appellate Authority - did not merely follow the tactics employed by the Assistant Commissioner to decide the matter, and has put in efforts in perusing the available records to draw his own inference.

17. The Deputy Commissioner, on a perusal of the available records, has found that the grant was in favour of a person belonging to Scheduled Caste Community namely Adi Karnataka and that other entries in the relevant records indicated that the grant was saddled with a condition of non-alienation for a period of fifteen years.

18. The Deputy Commissioner has come to this conclusion on looking into the relevant available records where the condition is mentioned to be one of non-alienation for a period of fifteen years. The condition of non-alienation for a period of fifteen years operates in respect of free grants, in terms of the rules that were prevailing at the relevant point of time and that is how the Deputy Commissioner has recorded a finding that the grant was a free grant. The finding may be one based on a process of reasoning and an inference from it, but cannot be characterised as a perverse finding or a finding not based on any material at all.

19. Though the learned Counsel for the petitioner has relied on the decision in Pedda Reddy's case, the present case is a situation where there is a finding recorded both on the aspects of grantee belonging to scheduled caste and that the grant was a free grant, attracting the condition of non-alienation for fifteen years. Therefore, the order passed by the Deputy Commissioner answers the test prescribed in Pedda Reddy's case and is not in contravention. This aspect apart, even ignoring the finding that the grant is a free grant, the condition of fifteen years as culled out from the records, is very much available and does stare at the petitioner. It is not in dispute that when it was a grant with a condition of non-alienation period of 10 years, the grant is for upset price and if the non-alienation period is fifteen years, it is a free grant.

20. I have taken the view that an actual condition in the grant order assuming that it imposes an onerous condition over and above what is permitted under the Rules which are applicable to such grant, at the relevant point of time, the condition does operate and such grant with such condition, cannot become bad or that the condition cannot be read down as limiting the condition to the maximum period permitted under the Rules. It is to be borne in mind that the power to impose condition is under the provisions of the Karnataka Land Revenue Act and the conditions are under the Rules. Rules are supplemental to the substantial provisions. What is not provided for is supplemented by the Rules. If the condition is imposed, which is not at variance with the Rules, and it can achieve a better result than what is provided for under the Rules, such condition cannot be held to be bad. Even with or without a finding that the grant was free, the condition of fifteen years non-alienation operates on such grant. But, in this case, the grant is a free grant and the condition is also in consonance with the Rules. The transfer of the land in question in the year 1967 therefore clearly indicates that it is within the non-alienation period. Therefore, the provisions of the Act are attracted and the sale is to be invalidated and the land has to be resumed to the State and to be restored in favour of the grantee or his/her legal heir. That is precisely what the Deputy Commissioner has done under the order passed by him in exercise of his appellate power under the Act.

21. In the circumstances, I am of the view that the order passed by the Deputy Commissioner does not call for interference. No need to upset this order in exercise of jurisdiction under Article 227 of the Constitution of India. Writ petition is accordingly dismissed.


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