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1980 DIGILAW 110 (KAR)

M. RAMAIAH v. SPL. DY. COMMR. BANGALORE DT.

1980-05-29

K.A.SWAMI

body1980
( 1 ) IN this petition, under Arts. 226 and 227 of the Constitution, the petitioner has challenged the order dated 3-9-1976 passed by the Special Deputy Commissioner, bangalore District in No. LND cr. 11/72-73. By the aforesaidgorder the tahsildar, Hoskote has been directed to take action against the petitioner for cancelling the grant of the land in question bearing Sy. No. 12 of Gullahalli village made in favour of the vendors of the petitioner. The land in question was granted to 21 persons under the rules framed under the Mysore Land Revenue Code. The grant was made on 30-11-1962. One of the conditions of the grant was that the grantees should not alienate the land in question before the expiry of 15 years. Nevertheless the land in question came to be alienated to the petitioner by the grantees on 12-5-1968 long prior to the expiry of 15 years. On coming to know of it, the Special Deputy Commissioner, bangalore initiated a proceeding against the petitioner as well as the grantees for cancellation of the grant and for resuming the land. During the course of the enquiry the Special Deputy Commissioner came to the conclusion that since the grant was made by the Tahsildar and as such under rule 25 of the Karnataka land Grant Rules 1969, the granting authority alone is entitled to take action for cancellation of the grant. In pursuance of the conclusion reached by him, the Special Deputy Commissioner has remitted the case to the Tahsildar for taking action in the matter. It is this order of the Special Deputy Commissioner that has been challenged in this petition. ( 2 ) SRI S. J. Srinivasan, learned counsel for the petitioner submitted that the Special deputy Commissioner acted without jurisdiction in remitting the matter to the tahsildar for taking action for cancellation of grant. Elaborating his contention the learned counsel submitted that there is no provision contained in the Land grant Rules, 1969 for res-timing the land in the event of breach of conditions of grant. As the question was of some importance the learned Ilnd Additional government Advocate, Sri M. R. Achar was asked to appear for the respondents who are official respondents and to assist the court. Accordingly, the learned IInd additional Government Advocate has appeared for them. As the question was of some importance the learned Ilnd Additional government Advocate, Sri M. R. Achar was asked to appear for the respondents who are official respondents and to assist the court. Accordingly, the learned IInd additional Government Advocate has appeared for them. After due investigation into the matter, he submitted that rule 43 (G) (7) of the Mysore Land Revenue rules framed under the Mysore Land revenue Code provided for cancellation of the grant for breach of the conditions of the grant. Rule 4 (G) (7) of the Mysore land Revenue Rules as amended reads as follows:-"the grant is liable to be terminated by the Divisional Commissioner or the state Government and the land resumed if any of the aforesaid condirions is not fulfilled, and on such resumption the land shall vest in Government free from all encumbrances. " ( 3 ) FROM the aforesaid rule it is clear that in case of breach of conditions of grant, it is open for the Divisional Commissioner or the State Government to take action for cancellation of the grant and to resume the land. Now the Special Deputy Commissioner has directed the Tahsildar to take action in the matter which is also not in accordance with the aforesaid rule. In this connection, it is to be noticed that though Mysore Land Revenue Rules pertaining to Land Grants came to be repealed by the Mysore Land Grant Rules, 1968, but, nevertheless, Rule 40 of the 1968 Rules has saved the right accrued and the liability incurred under the old rules. The grant in this case was made during the year 1962. At that time the rules framed under the Mysore Land Revenue Code were in force. According to Rule 43 (G) (4) of the Mysore Land Revenue Rules, there was a liability incurred by the grantees that they should not alienate the land granted for a period of 15 years from the date of the grantees' taking possession of the land. Thus, that liability incurred under the repealed rules continued to subsist even after the coming into force of the new Rules. Therefore, it was open for the authorities to take action in accordance with those rules. Thus, that liability incurred under the repealed rules continued to subsist even after the coming into force of the new Rules. Therefore, it was open for the authorities to take action in accordance with those rules. However, Shri Srinivasan, learned counsel for the petitioner, relied upon a decision of this court in abdul Badhoer Sub v. State of Mysore ( (1974) 2 Kar LJ 371) of course, in that case, this Court was concerned with the grant made during the period when the Rules framed under the mysore Land Revenue Code regarding the grant of land were in force, but the amendment to rule 43 (G) (7) which came to be effected retrospectively by the notification bearing No. RD 115 LGP 78 (11) dated 20th January 1979, published in the extraordinary Gaxette, dated 25th January 1979, makes all the difference. By this amendment, the following words " by the divisional Commissioner or the State government" came to be inserted in sub- rule (7) of rule 43-G of the Mysore Land revenue Rules framed under the Mysore revenue Code, after the words '' to be terminated". Rule 43-G (7) of the Mysore land Revenue Rules framed under the mysore Revenue Code as it stands after the amendment, has already been quoted earlier. The aforesaid decision relied on by the learned counsel for the petitioner will not be of any assistance in the instant case because in that case this court was required to proceed on the basis that there was no provision as to Who should exercise the power to cancel the grant and to resume the land. In view of the aforesaid amendment, the aforesaid decision would not be of any assistance to the petitioner. ( 4 ) THEREFORE, it is clear that the Divisional commissioner as well as the State Government are competent to take action for cancellation of the grant of land made during the period when the rules framed under the Mysore Land Revenue Code were in force. In view of this conclusion the direction issued by the Special Deputy commissioner to the Tahsildar cannot be sustained. Accordingly, this petition is allowed. The impugned order of the special Deputy Commissioner is hereby quashed. In view of this conclusion the direction issued by the Special Deputy commissioner to the Tahsildar cannot be sustained. Accordingly, this petition is allowed. The impugned order of the special Deputy Commissioner is hereby quashed. However, it is made clear that it is open for the Divisional Commissioner or the State Government to take action in the matter for cancellation of the grant and resumption of the land in question in accordance with law. It is ordered accordingly. --- *** --- .