KUNDEERA PONNAPPA v. H. S. VASU — 1989 DIGILAW 250 (KAR)

BALAKRISHNA, J. ( 1 ) THE point for consideration is whether under the provisions of sub-rule (2) (a) of rule 122 of the Rules issued under the coorg Land and Revenue Regulation, 1899 (hereinafter referred to as 'the Rules') which stipulates prohibition of sale of lands without the orders of the Assistant Commissioner in writing, except to Government or to Cooperative Credit Societies, is mandatory or directory. ( 2 ) IN paragraph 5 of the writ petition, a categorical stand taken by the petitioner is that the provision under the said Regulation make it clear that the lands granted to harijans or other landless poor people upto a maximum of 3 acres should not be alienated by sale, gift, mortgage or otherwise without the orders of the Assistant Commissioner in writing. Therefore, it is contended by Sri U. L. Narayana Rao, learned Counsel for the petitioner that according to the provisions of the Regulations, the lands granted to a Harijan cannot be alienated without the permission of the Assistant Commissioner. At the same time, it is contended that the first respondent cannot take advantage of the same for claiming the benefits under the said Regulation because the permission of the Assistant Commissioner (respondent-2) is not mandatory but only directory, since according to the petitioner, the provisions of the Act have been enacted for the benefit of the people belonging to the poor and others coming under the Scheduled castes and Scheduled Tribes category in the state of Karnataka. The alternative argu- ment is that if a land is granted to a person coming under the said category and he alienates the same contrary to the conditions of the grant, the same could not be restored to him. Therefore, it is submitted that the impugned orders under Annexures 'a' and 'b' are liable to be set aside. The alternative argu- ment is that if a land is granted to a person coming under the said category and he alienates the same contrary to the conditions of the grant, the same could not be restored to him. Therefore, it is submitted that the impugned orders under Annexures 'a' and 'b' are liable to be set aside. ( 3 ) NECESSARILY, I have to advert to the provisions of sub-rule (2) (a) of Rule 122 of the Rules, which reads as follows :-" (2) In the case of free grant of such lands to the Harijans or other landless poor people, lands upto a maximum of 3 acres in each case may be granted free of timber value (ebony and other valuable trees if any, to be removed by the Forest Department before grant) subject to the following conditions : (a) The alienation of these lands by sale, gift, mortgage or otherwise except to government or to Co-operative credit Societies, without the orders of the Assistant Commissioner in writing, is prohibited. " ( 4 ) WHAT is consequential in the wordings of Sub-rule (2) (a) of Rule 122 of the Rules are the words to the effect that the alienation of those lands by sale, gift, mortgage or otherwise except to Government or to Cooperative Credit Societies, without the orders of the Assistant Commissioner in writing is prohibited. ( 5 ) THE construction placed on these wordings is that no sale could be made without the orders of the Assistant Commissioner in writing. I do not see any ambiguity in the language of the aforesaid Rule. A reasonable interpretation would lead me to the conclusion that the alienation by sale presupposes an order in writing passed by the assistant Commissioner permitting such sale. In short, an order permitting the sale by the Assistant Commissioner in writing is a condition precedent. What the Rule envisages is the prohibition of sale without an order in writing of the Assistant Commissioner permitting the same. In the context, the prohibition is mandatory in the absence of a written order from the Assistant Commissioner to sell the lands. If prohibition is mandatory, it cannot be said that the need to obtain an order in writing from the Assistant commissioner for the purpose of sale is directory. In the context, the prohibition is mandatory in the absence of a written order from the Assistant Commissioner to sell the lands. If prohibition is mandatory, it cannot be said that the need to obtain an order in writing from the Assistant commissioner for the purpose of sale is directory. The imperative for obtaining an order in writing from the Assistant Commissioner is as much mandatory as the prohibition, otherwise the meaning of the Rule would be destroyed by mutual contradictions. I do not find any scope for an interpretation which does not satisfy a harmonious construction of the words used in this Rule. ( 6 ) IT is no doubt true that the instant case is one of those relating to free grant of lands under the Regulation to the members of the scheduled Castes and Scheduled Tribes. The object of the Regulation appears to be to confer on Weaker sections grant of lands in order to improve their economic condition. The spirit behind the prohibition of alienation without the orders of the Assistant commissioner seems to be to ensure that the lands granted to the weaker sections on the basis of the principle of affirmative action are not frustrated and that the purpose of the regulation is not defeated by sale of granted lands unless the Assistant Commissioner had an opportunity of examining whether or not permission should be accorded to the intending seller. In my opinion, insistence of this sub-rule on securing of a written order from the Assistant Commissioner for sale of the granted land calls for application of mind by the Assistant Commissioner before exercising statutory discretion vested in him. In order to decide whether or not such permission should be granted, if the provisions of sub-rule (2) (a) of Rule 122 of the Rules are to be regarded as directory, I do not think that there would be any scope for the Assistant Commissioner either to exercise his discretion or to enforce the prohibition contemplated by the said provision. At the same time, it can be fairly said that power to grant permission for sale lies within the discretion of the Assistant Commissioner and the discretion has to be invoked by the grantee before he alienates the land. At the same time, it can be fairly said that power to grant permission for sale lies within the discretion of the Assistant Commissioner and the discretion has to be invoked by the grantee before he alienates the land. It is only possible to say that in all cases the Assistant commissioner cannot arbitrarily or automatically refuse or grant permission for sale if the application is made by the grantee for sale of the granted land. ( 7 ) IN the facts and circumstances of the case, admittedly no such application was made to the Assistant Commissioner invoking his permission for an order in writing to alienate the land. There is no assertion or pleading to the effect that such an application was ever made prior to the sale. On the other hand, it is contended that even after alienation, the Rule referred to above does not preclude the petitioner from seeking subsequent ratification of sale and that prior approval is not mandatory. ( 8 ) FOR the reasons which I have already given, I do not see any scope under this Rule for subsequent ratification and what is contemplated is prior permission only. Since admittedly no permission was obtained by the petitioner before alienation I am of the opinion that the alienation is hit by the bar imposed by sub-rule (2) (a) of Rule 122 of the rules. ( 9 ) THE grant in question undisputedly is subject to the terms envisaged under sub- rule (2) (a) of Rule 122 of the Rules. The condition of the grant is that the land shall not be alienated without the written orders of the Assistant Commissioner before it is sold. It is not the case of the petitioner that the permission was obtained from the Assistant commissioner before the land was sold. All along what is contended by the learned counsel is that there is no need to obtain an order in writing from the Assistant Commissioner prior to the sale. This argument, I have already repelled earlier and it is redundant to go into that question once again. All along what is contended by the learned counsel is that there is no need to obtain an order in writing from the Assistant Commissioner prior to the sale. This argument, I have already repelled earlier and it is redundant to go into that question once again. In the instant case, the Assistant Commissioner, madikeri Sub-Division, Madikeri and the deputy Commissioner, Kodagu District, are fully justified in holding that there is breach of terms of the grant in as much as the land was sold by the grantee without the prior orders in writing from the Assistant commissioner permitting the same. I am of the opinion that the prohibition contemplated under sub-rule (2) (a) of Rule 122 of the rules is mandatory and not directory. ( 10 ) UNDER Section 4 of the Karnataka scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) act, 1978 (hereinafter referred to as 'the act') it is provided that:"prohibition of transfer of granted lands - (1) Notwithstanding anything or any law, agreement, contract or instrument, any transfer of granted land made either before or after the commencement of this Act, in contravention of the terms of the grant of such land or the law providing for such grant or sub-section (2) shall be null and void and no right, title or interest in such land shall be conveyed nor be deemed ever to have conveyed by such transfer. (2) No person shall after the commencement of this Act, transfer or acquire by transfer any granted land without the previous permission of the government. " ( 11 ) THE notable factor under sub-section (2) of Section 4 of the Act is that there is a provision for transfer or acquisition by transfer of any granted land from the grantee, if prior permission is obtained from the government. This provision in substance is analogous to sub-rule (2) (a) of Rule 122 of the Rules wherein what is contemplated is prior permission from the Assistant Commissioner in writing and whereas under sub-section (2) of Section 4 of the Act, permission contemplated is the previous permission of the Government instead of the Assistant commissioner. The spirit and substance of law would be seen in confluence in both the provisions. The scheme of the Act and the object of the legislations appear to be the same. The spirit and substance of law would be seen in confluence in both the provisions. The scheme of the Act and the object of the legislations appear to be the same. Under sub-section (1) of Section 4 of the Act, any sale transaction made in contravention of such land is null and void. The contravention referred to in this Section is traceable to the contravention made by the original grantee who alienated 2 acres of land in favour of the petitioner on 8-12-1960, whereas the land was granted to the original grantee on 14-4-1960. In these circumstances, I hold that the view taken by both the assistant Commissioner, Madikeri Sub- division, Madikeri and the Deputy Commissioner, Kodagu District, Madikeri, do not call for interference. ( 12 ) FOR the foregoing reasons, this writ petition is dismissed. However, in the circumstances of the case, there will be no order as to costs. ( 13 ) FROM 1960 up to the date of this order, the petitioner has been in possession and enjoyment of the lands and he has converted the granted lands into coffee plantation. It was submitted that vast improvements have been made at considerable expenses and coffee crop is due to be harvested around the month of January, 1990. In these circumstances, I regard it just and reasonable to permit the petitioner to harvest the crop within a reasonable time and I, therefore, give liberty to the petitioner to harvest the coffee crop before the end of january, 1990. In regard to the improvements effected by the petitioner and also in regard to the nature and number of trees in existence in the plantation, respondent-2 is directed to draw up a mahazar after duly serving a notice on the petitioner and furnish a copy of the same to him expeditiously. Writ Petition dismissed. --- *** --- .