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1988 DIGILAW 470 (KAR)

SHIVANNA v. STATE OF KARNATAKA

1988-10-13

M.RAMAKRISHNA RAO

body1988
RAMAKRISHNA, J. ,, J. ( 1 ) THE petitioner in this writ petition has called in question the correctness and legality of the order passed by the assistant Commissioner at Annexure-B and that of the Deputy Commissioner at annexure-C. ( 2 ) THE undisputed facts as could be gathered from the impugned orders as well as the pleadings are as follows : 4 acres 4 guntas of land in S. No. 743 situate in Salur village, Shikaripura taluk, Shimcga District, was originally granted by the competent authority by an order made on 14/16th September 1949 in favour of one Shimoggi Ninganna under the scheme known as 'grow More food Campaign', a scheme evolved under the then Mysore Land Grant Rules on lease basis subject to certain conditions. ( 3 ) LATER on, the lessee, Ninganna, having sought for confirmation of the land in question in his favour, the Assistant commissioner, Sagar Sub Division, Sagar, sent up a recommendation to the Deputy commissioner, Shimoga, on 23rd October 1963. The said report reads as follows :"s. No 743 of Salur village measuring 3a-8g wet and 0-36g dry land was leased out to Sri Shimoggi Ninganna under G M. F. Scheme by the deputy Commissioner, Shimoga, vide order No. A-6. SD. 138/48-49 dated 16-9-1949. The Tahasildar, Shikaripura, has now recommended for confirmation of the lease grant in favour of the original lessee. It is seen from the pahani extract that the lessee has not cultivated the entire extent within the prescribed period. He has cultivated 1a 8g only and the remaining extent of 2a 36g has been left fallow. I, therefore, recommend that an extent of 4a-4g of land in S. No. 743 of Salur village may kindly be confirmed. The upset price may be fixed as follows : area cultivated 1a-8g at Rs. 4/- per acre. Area left fallow 2a-36g at Rs. 75/- per acre. The lands may be granted subject to non-alienation condition for a period of 15 years. "this recommendation is found in the original records produced by the learned high Court Government Pleader. The recommendation made by the Assistant commissioner came to be approved by the Deputy Commissioner. Shimoga, in his minutes No N. Dis-M4. L. C. 11/63- 64 dated 30th November, 1963. ( 4 ) THUS, 4 acres 4 guntas of land in the above survey number came to be granted in favour of the said Ninganna. The recommendation made by the Assistant commissioner came to be approved by the Deputy Commissioner. Shimoga, in his minutes No N. Dis-M4. L. C. 11/63- 64 dated 30th November, 1963. ( 4 ) THUS, 4 acres 4 guntas of land in the above survey number came to be granted in favour of the said Ninganna. It is not in dispute that the grant is made subject to The usual conditions referrable to the Mysore Land Grant Rules applicable as on the date when the grant was made. ( 5 ) BY a registered sale deed dated 1-6-1965, the grantee Ninganna sold the granted land in favour of the fifth respon- dent-Basavannappa. It is stated that the petitioner-Shivanna became a tenant cultivating the land in question under the purchaser, fifth respondent-Basavannappa. ( 6 ) AFTER coming into force of the karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of certain Lands) Act, 1978 (for short 'the act'), Shimoggi Chowdappa-4th respondent herein approached the Assistant ccmmissioner-3rd respondent herein seeking relief under the said Act. ( 7 ) IT may be mentioned here that the stand taken by Chowdappa - 4th respondent in his application was that the original grantee Shimoggi Ningappa died leaving behind his wife and two daughters, and that the widow of Ninganna also died subsequently. It is disclosed in the enquiry before the Assistant Commissioner that both daughters of Ninganna died - one before the marriage and another after the marriage. The stand taken by the applicant-Chowdappa was that he was the eldest son of late Hole Basappa, who was the younger brother of Ninganna the original grantee inasmuch as there was no other heir left by the original grantee. ( 8 ) THE contention of the applicant before the Assistant Commissioner was that the granted land came to be sold in favour of the 5th respondent in contravention of the condition of grant. Therefore, sections 4 and 5 of the Act were applicable for giving him relief under the Act. ( 8 ) THE contention of the applicant before the Assistant Commissioner was that the granted land came to be sold in favour of the 5th respondent in contravention of the condition of grant. Therefore, sections 4 and 5 of the Act were applicable for giving him relief under the Act. ( 9 ) THE learned Assistant Commissioner, having notified both the parties and having held an enquiry, passed the impugned order, Annexure-B, on 16-5-1984, holding that 4 acres 4 guntas of granted land came to be sold in favour of the 5th respondent in contravention of the condition of grant and therefore the said transfer was null and void, and that, chowdappa-applicant having established that he was the only heir left by the original grantee, he was entitled for the relief under Sections 4 and 5 of the Act. ( 10 ) AGGRIEVED by this order of the assistant Commissioner, the petitioner herein took up the matter in appeal before the Deputy Commissioner, Shimoga, who, by the impugned order Annexure-C, dated 21-7-1988, dismissed the appeal upholding the view expressed by the assistant Commissioner. Aggrieved by these two orders, the petitioner has approached this Court under Articles 226 and 227 of the Constitution of India seeking for relief. ( 11 ) SRI Veerabhadrappa, learned counsel for the petitioner, mainly argued that both the authorities below had failed to consider an important aspect of the matter arising out of the case. His contention is that having regard to the lease held rights conferred upon the original grantee-Ninganna, by an order made by the Deputy Commissioner on 16-9-1949, under the Grow More Food Scheme provided under the Mysore Land Revenue rules as it stood then, 1 acre 8 guntas out of 4 acres 4 guntas of land having been brought under cultivation in accordance with the condition of grant, no fresh condition could be imposed to that extent of land and condition necessary for the purpose of a fresh grant to be made under the Land Grant Rules, may be imposed in so far as the remaining 2 acres 36 guntas of land is concerned. Thus, Sri Veerabhadreppa contended that the Assistant Commissioner ought to have excluded 1 acre 8 guntas out of 4 acres 4 guntas from the purview of Rule 43-G. Therefore, he argued that having regard to Rule 43-J of the Mysore Land revenue (Amendment) Rules, 1969, no condition could be imposed for the purpose of confirmation of 1 acre 8 guntas of land as it is not a fresh grant. This extent of land should have been excluded from the total land of 4 acres 4 guntas when the Assistant Commissioner applied the provisions of Sections 4 and 5 of the act. ( 12 ) ADMITTEDLY, 4 acres 4 guntas of land in S No. 743 of Salur Village was granted in favour of Shimoggi Ninganna by the Deputy Commissioner, Shimoga, on 16-9-49 and the rights conferred on the lessee in respect of the entire extent of the land cannot be taken away by the order of confirmation made subsequently by the Deputy Commissioner on 30th november 1963 based upon the recommendation of the Assistant Commissioner therefore, to the extent of 1 acre 8 guntas out of 4 acres 4 guntas of land must be taken away from the purview of Rule 43-G and that portion of the land must be governed by Rule 43-J. For the purpose of convenience. Rule 43-J is extracted hereunder:"grant of Land to persons to whom lands have been leased temporarily- notwithstanding anything contained in the preceding rules of this chapter, in the case of agricultural land leased by competent authority to any person for purposes of cultivation at any time before the commencement of the mysore Land Revenue (Amendment), rules, 1960, if such land is available for disposal and if the conditions of the lease have been complied with, the land may be granted to the lessee. "having regard to the language employed in Rule 43-J, it is clear that a lessee will have a right to seek for confirmation under the above rule without there being and condition attached to the order of confirmation. In other words, the condition under Rule 43-G cannot be applied for the purpose of confirmation as required by Rule 43 J. This aspect of the matter has been lost sight of by both the assistant Commissioner and the Deputy commissioner in this case. In other words, the condition under Rule 43-G cannot be applied for the purpose of confirmation as required by Rule 43 J. This aspect of the matter has been lost sight of by both the assistant Commissioner and the Deputy commissioner in this case. Therefore, the contention of Sri Veerabhadrappa must be accepted and if that is accepted, then only 2 acres 36 guntas out of 4 acres 4 guntas must be held to be the granted land for the purpose of applying sections 4 and 5 of the Act. To this extent, the impugned orders of both the authorities deserve to be modified. ( 13 ) IN the result, the writ petition is partly allowed and the impugned orders, Annexures-B and C are modified as follows : the impugned orders Annexures-B and C shall confine only to the extent of 2 acres 36 guntas out of 4 acres 4 guntas which can be said to be granted land for the purpose of giving relief in favour of the 4th respondent-Shimoggi Chowdappa under Sections 4 and 5 of the Act. The remaining 1 acre 8 guntas having been taken away from the purview of rule 43-J and having been considered under Rule 43 G, that portion of the land is not subject to any condition under the land Grant Rules. Therefore, there cannot be said to be any violation of the condition for the purpose of attracting sections 4 and 5 of the Act. ( 14 ) THE learned Counsel for the petitioner and the learned Counsel for the 4th respondent have submitted that, with due consent with their clients, who were present before the Court, a rough sketch is prepared to show the situation of S. Nos. 743 and 744 (belonging to shivanna) for the purpose of demarcating 1 acre 8 guntas out of 4 acres 4 guntas inasmuch as I have held that 1 acre 8 guntas marked as CDEF in the sketch will continue to remain with Shivanna-the petitioner herein and the remaining 2 acres 36 guntas marked as ABCGEF shall be handed over to respondent No. 4 pursuant to the order of the authorities below. Learned Counsel on both sides in consultation with their clients have agreed to act accordingly. The rough sketch is recorded and appended to the order. Learned Counsel on both sides in consultation with their clients have agreed to act accordingly. The rough sketch is recorded and appended to the order. ( 15 ) THE office is directed to send a copy of the order along with the sketch appended herein to the Assistant Commissioner, sagar Sub-Division, Sagar, so as to enable him to take appropriate action. ( 16 ) IT is submitted by Sri Veera- bhadrappa, learned Counsel for the petitioner, that, since there is standing crop of paddy and cotton raised by the petitioner ; inasmuch as there is an interim order operating in his favcur, the petitioner may be permitted to harvest the standing crop. The Assistant Commissioner is accordingly directed to permit the petitioner to harvest the standing crop not later than the end of december, 1988 before any action can be taken to evict the petitioner from 2 acres 36 guntas of land marked as abcgef. ( 17 ) IT is lastly submitted that there is standing teak trees and therefore, the petitioner may be permitted to cut and remove the same after due permission of the Forest Department, if there are trees on the land, the petitioner may cut and remove the same after due permission from the competent authority. Ordered accordingly. --- *** --- .