SHIVALINGAIAH v. STATE OF KARNATAKA — 1991 DIGILAW 567 (KAR)

M. RAMAKRISHNA RAO, J. ( 1 ) THESE three writ petitions arise out of common orders made by the assistant commissioner, at annexure-a, dated 6-2-1990 and the deputy commissioner, in appeal, at annexure-b. ( 2 ) SINCE common questions of fact and law arise in these petitions, I propose to dispose of them by the following common order. ( 3 ) BRIEF facts that are necessary for the disposal of these writ petitions are as follows:- it is not in dispute that by proceedings No. Dcdr 1:59-60, dated 7-7-1960, two acres of land in sy. No. 75 of chamalapura village, keregodu hobli, mandya district, came to be granted in favour of hanumaiah, husband of the 2nd respondent, manjamma, by the competent authority under the Provisions of the Karnataka land grant rules, subject to certain conditions. One such condition was that the grantee shall not alienate the granted land for a period of 15 years from the date of grant. ( 4 ) IT is again undisputed that out of the granted land of 2 acres, 20 guntas of land came to be sold in favour of shivalingaiah, the petitioner in W. P. No. 24145/1991, by a registered sale deed dated 22-9-1964. Again by another sale deed dated 28-4-1965 another 20 guntas of the granted land came to be sold in favour of gopalaiah, the petitioner in W. P. No. 24146/1991 and again the remaining one acre of the granted land came to be sold by a registered sale deed dated 25-5-1965 in favour of the petitioner in W. P. No. 24147/1991. Thus the entire 2 acres of land granted in favour of the husband of the 2nd respondent came to be sold before the expiry of the period of 15 years of non-alienation. ( 5 ) AFTER coming into force of the Karnataka scheduled castes and scheduled tribes Act, 1978 (hereinafter referred to as 'act'), Smt. Manjamma, the second respondent approached the assistant commissioner with an application seeking for the relief under the said act. Earlier the assistant commissioner, having notified both the parlies and having held an enquiry, passed an order on 24-6-1983 by which the application of the 2nd respondent was allowed by granting relief in her favour. Aggrieved by that order of the assistant commissioner, petitioners filed writ petition Nos. 15824 to 26/1983 in this court challenging its correctness. Earlier the assistant commissioner, having notified both the parlies and having held an enquiry, passed an order on 24-6-1983 by which the application of the 2nd respondent was allowed by granting relief in her favour. Aggrieved by that order of the assistant commissioner, petitioners filed writ petition Nos. 15824 to 26/1983 in this court challenging its correctness. This court dismissed the writ petitions by a common order with liberty to the petitioners to file an appeal before the deputy commissioner. Accordingly, the appeal in ptcl. No. 43/1987-88 was filed before the deputy commissioner, mandya. The learned deputy commissioner having heard the learned counsel on both sides allowed the appeal by an order dated 16-5-1988, set aside the order impugned therein and remitted the matter to the assistant commissioner with a direction to dispose of the cases afresh in accordance with law. Pursuant to the said Order, the assistant commissioner once again held an enquiry after providing an opportunity to both the parties of being heard and, by an order (annexurc-a) dated 6-2-1990 held that said the granted land came to be sold in contravention of the condition of the grant, the sale of granted land was null and void. He directed restoration of the land to respondent-2. ( 6 ) AGGRIEVED by this Order, an appeal was filed before the deputy commissioner, who after hearing the learned counsel on both sides, dismissed il by the impugned Order, annexurc-b, affirming the conclusion of the assistant commissioner both on the question of facts and on the question of law. Hence, these writ petitions under Articles 226 and 227 of the Constitution of India. ( 7 ) THREE contentions have been urged in support of the writ petitions which are common to these writ petitions. They are, (1) Smt. Manjamma, the second respondent here in, is not entitled to seek for the relief under the act as long as original grantee hanumaiah was alive. (2) she is not a legally wedded wife of hanumaiah. Therefore, the assistant commissioner was not right in granting relief in her favour. (3) the last contention is that, after the sale of granted land in favour of the petitioners, they have invested quite a good sum of money and labour and improved the land. (2) she is not a legally wedded wife of hanumaiah. Therefore, the assistant commissioner was not right in granting relief in her favour. (3) the last contention is that, after the sale of granted land in favour of the petitioners, they have invested quite a good sum of money and labour and improved the land. The improvement effected to the land in question ought to have been noticed by the assistant commissioner and a mahazar drawn enabling the petitioners to seek for the compensation for the loss of land. ( 8 ) DEALING with the first contention, I am of the opinion that this contention has no force. The assistant commissioner on consideration of the evidence on record both oral and documentary has recorded a clear finding that the original grantee hanumaiah had left the village about 20 years ago and his whereabouts were not known and that therefore there was no alternative for respondent-2 manjamma, his wife, but to file an application for restoration of the land granted to her husband. That apart, Section 108 of the Evidence Act provides that if a person is proved to have not heard of for 7 years, the burden of proving that he is alive is on the person who affirms it. Similar provision is provided in clause b (vii) of sub-section (1) of Section 13 of the Hindu Marriage Act, 1955 as one of the grounds to take a decree of divorce by either the husband or the wife. The petitioner was unable to produce any satisfactory evidence to prove that hanumaiah the original grantee was alive. Therefore, manjamma being the l. r. of the original grantee rightly applied for restoration of the land granted to her husband. That cannot be found fault with. Thus, this contention fails. ( 9 ) DEALING with the second contention that Smt. Manjamma was not the legally wedded wife of hanumaiah, the original grantee, I may say that it is also one without any force. Though such a contention was taken before the assistant commissioner, nothing was produced to prove it, despite sufficient opportunity was given. Therefore, from the available evidence on record, the assistant commissioner has concluded that respondent-2 was the wife of hanumaiah, original grantee. Though such a contention was taken before the assistant commissioner, nothing was produced to prove it, despite sufficient opportunity was given. Therefore, from the available evidence on record, the assistant commissioner has concluded that respondent-2 was the wife of hanumaiah, original grantee. Dealing with this aspect, the deputy commissioner has stated with reference to the voters' list produced that it was of 1988, whereas the original grantee left the village 20 years ago; that the voters' list disclosed at si. No, 564, No. 123, manjamma chikkanna and that no evidence was produced to show that hanumaiah @ chikkida mentioned in the sale deeds is different from chikkanna shown in the voters' list. Therefore, he has also concluded that manjamma-respondent 2 was the wife of hanumaiah, original grantee of the land in question. This finding being a finding on question of fact, this court under Articles 226 and 227 of the Constitution cannot interfere with such a finding. Hence, the second contention also fails. ( 10 ) THE last contention is of equity. In the absence of any provision under the act for awarding compensation for the loss of land and the improvement thereon, however large it may be, no compensation can be awarded. The petitioners cannot even get any benefit from the mahazar showing the extent of improvement. However, this court in the normal course is allowing the purchasers of the granted lands to harvest the crops and vacate the land to the persons directed by the competent authority. The petitioners herein arc entitled to such benefit. Hence, I make the following: order these writ petitions fail and are dismissed. No costs. However, I direct the assistant commissioner to permit the petitioners to harvest the crops standing on the land not later than 31-12-1991. In case it is not possible for them to do so by 31-12-1991, they may approach the authorities concerned for extension of time. ( 11 ) SRI Thimmegowda, learned high court government pleader is permitted to file his memo of appearance for respondent Nos. 1 and 2 in 3 weeks. --- *** --- .