DUNDAPPA v. DEPUTY COMMISSIONER, SHIMOGA — 1991 DIGILAW 474 (KAR)

M. RAMAKRISHNA RAO, J. ( 1 ) THE petitioner in this writ petition has called in question the correctness and the legality of the order made by the assistant commissioner, Annexure 'a' and that of the deputy commissioner, at Annexure 'b' respectively and has sought for quashing the same for the reasons set out in the writ petition. ( 2 ) IN order to appreciate the legal contentions urged by Sri B. K. Manjunath, thelearned counsel for the petitioner, it is necessary to refer to the salient facts of the case, briefly, arising in the writ petition. Thimappa, (the 3rd respondent herein) was granted 2 acres of dry land in sy. No. 112/13, situated in the village arabagatte, honnali taluk, shimoga district, by the competent authority in proceedings No. dd no, 37/55-56 under the Karnataka land grant rules subject to certain conditions. This fact is not in dispute. ( 3 ) AGAIN it is not in dispute that the granted land came to be sold in favour of thepetitioner by a registered sale deed dated 12-5-1967, for valuable consideration. It is stated that eversince the sale of the land in his favour, the petitioner has been in enjoyment of the land in question. ( 4 ) AFTER the coming into force of Karnataka scheduled castes and scheduledtribes, (prohibition of transfer of certain lands) 1978 ('the act' for short), the assistant commissioner, shimoga sub-division-2nd respondent, has taken suo motu action as required under Section 5 of the Act, based upon the report sent up by the tahsildar concerned. He issued a show-cause notice to the petitioner-purchaser under Rule 3 of the rules framed under the act. On the service of notice, the petitioner appeared along with the counsel and the assistant commissioner, held an enquiry in the presence of both the parties. It is necessary to mention here that pursuant to show-cause notice, though the petitioner appeared and contested, he did not choose to file any objections in writing opposing the prayer. On the service of notice, the petitioner appeared along with the counsel and the assistant commissioner, held an enquiry in the presence of both the parties. It is necessary to mention here that pursuant to show-cause notice, though the petitioner appeared and contested, he did not choose to file any objections in writing opposing the prayer. However, after hearing the learned counsel on both sides and perusing the original records, the assistant commissioner held that since the land in question came to be granted in favour of 3rd respondent during the year 1955-56, free of cost, 15 years non-alienation clause has to be imposed, that the alienation had taken place within the prohibitory period of 15 years, and that, therefore, the alienation was bad in law. He accordingly declared it as null and void under Section 4 of the act and directed restoration of the land to the original grantee under Section 5 of the act. ( 5 ) AGGRIEVED by this order of the assistant commissioner, Annexure 'a', thepetitioner filed an appeal in case No. Sc. st. 204/1987-88, before the deputy commissioner, shimoga, under Section 5 (a) of the act. In that appeal two specific grounds were taken. Namely,1) that the learned assistant commissioner has totally committed an error in jumping to the conclusion that the applicant (grantee) is a member of scheduled caste and that the alienation of granted land being in violation of the condition of the grant he would be entitled for the benefit of the act;2) without reference to the original records to satisfy himself, the assistant commissioner was in error in reaching the conclusion that, the non-alienation clause was 15 years, in as much as according to the appellant such non-allientation clause is 10 years as it was not a free grant and that therefore the conclusion reached by the assistant commissioner on fact cannot be sustained. the learned deputy commissioner, having heard the learned advocates on both sides, dismissed the appeal by impugned order Annexure 'c'. During the course of the Order, the deputy commissioner held that, by a perusal of the original records and having regard to the nature of grant of land, it was a free grant and that therefore the conclusion reached by the assistant commissioner, that the period of nonalienation was 15 years was justified. During the course of the Order, the deputy commissioner held that, by a perusal of the original records and having regard to the nature of grant of land, it was a free grant and that therefore the conclusion reached by the assistant commissioner, that the period of nonalienation was 15 years was justified. Again, the deputy commissioner, dealing with the other contentions, held against the appellant affirming the view of the assistant commissioner. Hence, this writ petition under Articles 226 and 227 of the Constitution of India. The petitioner has sought for quashing these two orders on the grounds reiterated in the writ petition. ( 6 ) SRI B. K. Manjunath, learned counsel for the petitioner, mainly contended asfollows:-1) in the absence of saguvali chit disclosing the correct non-alienation clause, the authorities below should not have reached the conclusion that the non-alienation period was 15 years, based upon the presumption. Therefore, such conclusion cannot be sustained. 2) there is no specific finding based upon the evidence that the 3rd respondent-grantee was a person representing scheduled castes/scheduled tribes as on the date of grant. Sri M. Raja Gopal, learned counsel for respondent No. 3, supported the impugned orders. 6. Sri. M. Siddagangaiah, learned high court government pleader, produced original records as directed by to court. ( 7 ) I will deal with the first question, since such a question is frequently coming upbefore this court, by one way or the other. ( 8 ) I carefully went through the original records made available. It is true, theoriginal records do not contain either the original order of grant of land or the copy of saguvali chit. Indeed, even the authorities below had no occasion to refer to these documents. However, there is a report of the tahsildar, honnali taluk, found at page No. 3,of the records. This report is in the form of answering interrogation, questions 1 to 13. Perhaps this interrogation is prepared for the purpose of providing material to the assistant commissioner so as to enable him to deal with the cases coming under the act. ( 9 ) ON question No. 3, the tahsildar, furnished his answer saying that the landcame to be granted under dharkasth in dd No. 37:55-56, extent of land 2 acres, in column No. 5. According to the recommendations, the tahsildar furnishes the following report. ( 9 ) ON question No. 3, the tahsildar, furnished his answer saying that the landcame to be granted under dharkasth in dd No. 37:55-56, extent of land 2 acres, in column No. 5. According to the recommendations, the tahsildar furnishes the following report. in column No. 3, the tahsildar furnishes information regarding the sale of granted land. ( 10 ) BY a perusal of the reasoning of the assistant commissioner at annexure'a', it is seen that he referred to this very report and stated as follows: ( 11 ) TO reiterate, the reasoning and the conclusion of the assistant commissioneris based upon the entry found in the dharkasth register as well as in the record of rights. Therefore, based upon these entries and the documentary evidence the assistant commissioner proceeded to pass the order - declaring that since the period of non-alienation in the instant case was 15 years, and before the expiry of that period, the granted land came to be sold, the sale was null and void under sections 4 and 5 of the act. ( 12 ) INDEED, the deputy commissioner, in appeal has also considered the contentionswith reference to the documentary evidence and upheld the conclusion of the assistant commissioner. ( 13 ) THE real question that arises for consideration having regard to the argumentadvanced by Sri B. K. Manjunath, learned counsel, is whether , in the absence of original order of grant or saguvali chit, it would be permissible for the court to rely upon the entry found in the dharkasth register and other revenue records to reach a conclusion one way or the other. Sri B. K. Manjunath, learned counsel for the petitioner, submits, the court cannot assume or presume things in the absence of original records. Therefore this question. ( 14 ) IN order to appreciate this legal contention it is proper to refer to Section 114of the Evidence Act, it reads:'the court may presume existence of any fact which it thinks likely to hatve happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. "section 74 of the Evidence Act deals with public documents. "section 74 of the Evidence Act deals with public documents. The following documents are public documents: (1) documents forming the acts, or records of the acts (i) of the sovereign authority, (ii) of official bodies and tribunals, and (iii) of public officers, legislative, judicial and executive, (of any part of India or of the commonwealth) or of a foreign country. (2) public records kept (in any state) of private documents. Section 63 of the Evidence Act deals with secondary evidence. It reads:-secondary evidence means and includes (1) certified copies given under the Provisions hereinafter contained; (2) copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies; (3) copies made from or compared with the original; (4) counterparts of documents as against the parties who did not execute them; (5) oral accounts of the contents of a document given by some person who has himself seen it. Section 65 of the Evidence Act deals with cases, in which, secondary evidence relating to documents may be given under clause (g) of Section 65, in case clause (a), clause (b), and clause (c) in secondary evidence of the documents is inadmissible. ( 15 ) WHEN the grant of land in question is admitted and not in dispute, it is open tothe authority to refer to the proceedings of the grant of land made by the competent authority, a certified copy of which is produced by the tahsildar in his report disclosing the proceedings and the condition of the grant. In other words, if the grant of the land in question in favour of 3rd respondent is admitted then applying Section 65 of the Evidence Act particularly referring to clause (g) of that Section, it is open to the assistant commissioner to accept the extract of the proceedings relating to grant of land and accordingly, he, relying upon the entries found in the dharkasth register and record of rights has rightly come to a conclusion that the land in question is granted in favour of the 3rd respondent in the year 1956 with a non-alienation clause of 15 years. This is one aspect. The other aspect is, having regard to Section 114 of the Evidence Act, extracted above, it is made clear that the presumption that can be drawn in regard to the fact in existence is subject to rebuttable. This is one aspect. The other aspect is, having regard to Section 114 of the Evidence Act, extracted above, it is made clear that the presumption that can be drawn in regard to the fact in existence is subject to rebuttable. In other words, it is open to the aggreieved person to produce such evidence as is sufficient to rebut the presumption under Section 114 of the act. Unfortunately, in the instant case, no such evidence is produced by the petitioner during the course of the enquiry before the assistant commissioner. Therefore, the assistant commissioner rightly considered the evidence available and held as above. This has been approved by the deputy commissioner in appeal. Hence, I do not see any reason to differ from the conclusion reached by the authorities below. ( 16 ) ADMITTEDLY, the land in question came to be granted in the year 1956 whensub-rule (8) of Rule 43 of the land grant rules was in force, and according to clause a (i) thereof, the land granted was subject to non-alienation for a period of 15 years, if it is a free grant since the authorities below have clearly held that the period of non-alienation applicable to the land was 15 years and since the alienation of the said land bad taken place within that period, it has to be declared as null and void under Section 4 of the act. ( 17 ) THERE is one more aspect of the matter which I have to consider. Sri B. K. Manjunath, learned counsel contended that the grant of the land in question was not free of cost but on payment of upset price and that therefore clause a (ii) of sub-rule (8) of Rule 43 would apply in which event the prohibition was for 10 years and not 15 years. ( 18 ) THIS contention has been raised for the first time before this court, inasmuchas it was never raised before either the assistant commissioner or the deputy commissioner in appeal. Nothing was produced to show that the grant was made on payment of upset price. Secondly, since that contention was never raised before the authorities below, they could not consider it and record their finding thereon. Thirdly, this court under Articles 226 and 227 of the Constitution cannot consider the question of fact already answered by the competent authority. Nothing was produced to show that the grant was made on payment of upset price. Secondly, since that contention was never raised before the authorities below, they could not consider it and record their finding thereon. Thirdly, this court under Articles 226 and 227 of the Constitution cannot consider the question of fact already answered by the competent authority. In view of the above, this contention fails. ( 19 ) THE next contention that in the absence of material evidence to show thatrespondent-3 was a person representing scheduled caste, the authorities below should not have applied the Provisions of the Act, is also untenable. Of course, the deputy commissioner has not considered in detail to satisfy himself that the third respondent-grantee was, in fact, a member of scheduled caste or tribe. But sri. B. k. manjunath, learned counsel, produced a copy of the sale deed executed by the 3rd respondent in favour of the petitioner. In the recital to the sale deed, the 3rd respondent thimappa, has stated that he was a person representing adi-Karnataka community which community has been recognised as scheduled caste in the state of Karnataka under the Constitution of India, (presidential Order, 1950 ). Therefore, there is no difficulty for me to take a positive view that the 3rd respondent-grantee was a member representing scheduled caste even as on the date of grant in his favour. Therefore, the second contention must fail. No other contention is urged. In the result, the writ petition fails and it is dismissed with costs throughout. Advocate fee Rs. 1,000/ -. 20, before parting with this case Sri B. K. Manjunath, learned counsel, submitted that since the petitioner continued to be in possession of the land and that this year he has raised certain crop which would be ready for harvest by the end of the year, he sought permission to enable the petitioner to harvest the standing crop before any action is taken to evict him from the land. This submission being fair and proper I accept this submission and direct the assistant commissioner to permit the petitioner to harvest the standing crop on the land not later than 31st of december, 1991, before any action is taken to evict him from the land. --- *** --- .