VENKATAIAH v. SPECIAL DEPUTY COMMISSIONER, MYSORE — 1991 DIGILAW 603 (KAR)

M. RAMAKRISHNA RAO, J. ( 1 ) THE petitioner in this writ petition has called in question the correctness of the legality of the orders made by the assistant commissioner at Annexure-C and that of the deputy commissioner at Annexure-D. He has sought for quashing the same for the reasons set out in the writ petition. A few facts that are necessary for the purpose of this writ petition are as follows:- ( 2 ) BY a perusal of the facts referred to in the impugned order at Annexure-C as well as the conclusion reached therein, it is seen according to venkatesh s/o. Maravenkataiah, the 3rd respondent herein, his father maravenkataiah was granted 1 acre of land in sy. No. 1/79 situated in the village of aspathra kavalu, hunsur taluk, Mysore district, by the competent authority by an order made on 17-1-1957. On that day a saguvali chit came to be issued in his favour under the Karnataka land grant rules subject to certain conditions. ( 3 ) IT is stated that during his life time the grantee, his father, who mortgaged the said land in favour of basavaiah, the father of the petitioner, for a sum of Rs. 400/ -. Therefore, he approached the assistant commissioner with an application presented on 1-4-1987 seeking relief under the Karnataka scheduled castes and scheduled tribes (prohibition of alienation of certain lands) Act, 1978 (hereinafter referred to as 'the act' ). ( 4 ) BASED upon the said application, a report was called for by the assistant commissioner from the tahsildar. The tahsildar sent a report which is in the original records, on 19-6-1990. On the strength of the said application and the report the assistant commissioner held an enquiry giving opportunity to both the parties. During the course of the enquiry he having referred to certain documents and the oral evidence reached the conclusion that there is a mortgage of the granted land to the extent of 1 acre in favour of basavaiah, father of the petitioner for a sum of Rs. 400/- and therefore he held that there is contravention of the condition of the grant in as much as there was a condition imposed on the grant that the grantee shall not alienate the granted land for a period of 15 years. 400/- and therefore he held that there is contravention of the condition of the grant in as much as there was a condition imposed on the grant that the grantee shall not alienate the granted land for a period of 15 years. Therefore, he declared the mortgage as null and void and directed restoration of the granted land in favour of the 3rd respondent-applicant by his impugned order at Annexure-C. ( 5 ) AGGRIEVED by this order of the petitioner filed an appeal in appeal No. Ptcl 35:90:91 under Section 5-a of the act. The learned deputy commissioner on an application filed seeking for interim stay, pending disposal of the appeal passed the following order: this order was made by the deputy commissioner on 12-12-1990. ( 6 ) THE grievance of the petitioner is of two folds:- (i) that the conclusion reached by the assistant commissioner on facts is incorrect and that therefore the order made at Annexure-C cannot be sustained; (ii) despite there was an order of slay granted by the appellate authority as staled above on 12-12-1990 directing the parties to maintain status quo, the assistant commissioner passed an order as at Annexure-E on 13-12-1990 by which he issued direction to tahsildar to grant the land in question in favour of the 3rd respondent. ( 7 ) DEALING with the first grievance, Sri F. V. Patil, learned counsel for the petitioner, took me to the impugned order at Annexure-C and brought to my notice that the finding recorded by the assistant commissioner showing that 1 acre of land in sy. No. 1/79 came to be granted in favour of the 3rd respondsnt is factually incorrect and unsustainable, inasmuch as 1 acre of land in sy. No. 1/79 in the village referred to above, was granted in favour of venkalaiah s/o basavaiah, the petitioner herein by the competenl authority issuing a saguvali chit on 17-1-1957. To demonstrate the same a copy of saguvali chit is produced at annexure-a. He further submitted that vcnkataiah s/o basavaiah, whose name is mentioned at page 4 of the saguvali chit is none other than the pelitioner himself. 1 acre of land referred to in the schedule therein is, in favour of the petilioner and not in favour of the father of the 3rd respondent. 1 acre of land referred to in the schedule therein is, in favour of the petilioner and not in favour of the father of the 3rd respondent. Secondly, he submitted that, right from the grant of the land upto the year 1990-91 the entry is found in the r. t. c. in respect of sy. No. 1/79 that 1 acre of land is standing in favour of the petitioner. He has produced a certified copy of r. t. c. to demonstrate the same. There was no proper opportunity given for the petitioner to participate and to cross-examine the witnesses on behalf of 3rd respondent in the enquiry held by the assistant commissioner. Therefore, he submitted that the conclusion reached by the assistant commissioner on facts is incorrect and erroneous. ( 8 ) SRI Sidda Gangaiah, learned high court government pleader, has produced original records. According to him, 1 acre of land in sy. No. 1/79 was grained in favour of maravenkataiah, father of 3rd respondent. But, he has not been able to lay his hands on the original saguvali chit issued to him or a copy thereof if found in the records, which means that a copy of the saguvali chit pursuant to the grant of land in favour of the father of 3rd respondent, is not available. ( 9 ) THERE is one more important aspect which I have noticed in the original records produced by the learned high court government pleader. It is seen that the application presented by the 3rd respondent is as, on 1-12-1987. In that application he has furnished particulars as required. As against column No. 3 he has furnished in sy. No. 1/79 the extent of land as 1 acre. As against column No. 5 he has stated thus: ( 10 ) WHEN the assistant commissioner called for a report from the tahsildar, he sent a report as at page 1. In his report he has stated as against column 4 that the name of the grantee if the darkhast land is venkataiah s/o basavaiah. Therefore, the grantee referred to in his report is not the father of the 3rd respondent but father of the petitioner. No doubt the proceedings No. Under which the land was granted is one and the same; viz. , No. Dcd 14:56-57, dated 17-1-1957. Therefore, the grantee referred to in his report is not the father of the 3rd respondent but father of the petitioner. No doubt the proceedings No. Under which the land was granted is one and the same; viz. , No. Dcd 14:56-57, dated 17-1-1957. ( 11 ) UNDER these circumstances, I am of the opinion that the assistant commissioner who held the enquiry failed to apply his mind to the correctness of facts referring to the relevant documentary evidence to reach a correct conclusion. 11. The possibility of 1 acre of land having been granted in favour of the father of 3rd respondent might be there. But in the original records produced I have not been able to lay my hand on the proceedings resulting in the grant of 1 acre of land in sy. No. 1/79 in favour of the father of 3rd respondent. This is in respect of factual position as directed in the impugned order and affirmed afresh in this writ petition. ( 12 ) NOW coming lo the legal question I am clearly of the opinion that the assistant commissioner failed to apply his mind to the relevant provision of law when he held that there is alienation of the granted land referring to the grantee said to have been made by the applicant in favour of the petitioner's father for borrowing a sum of Rs. 400/- on the strength of that land. At the outset, I must point out that according to Section 17 (l) (b) of the Registration Act, 1908, which reads as follows:-"17 (1) (b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immoveable property; "therefore any immoveable property worth Rs. 100/- and above is required to be made by means of a document which shall be registered under this provision of the act. In the absence of such a document having been duly registered there is no interest or title in respect of that property. It is nobody's case that the land in question came to be alienated or transferred by way of a registered document thereby the action of that kind could be said, the grantee granted the land. In the absence of such a document having been duly registered there is no interest or title in respect of that property. It is nobody's case that the land in question came to be alienated or transferred by way of a registered document thereby the action of that kind could be said, the grantee granted the land. On the other hand, the report of the tahsildar says no answer to paragraph 13, as to whether any document said to have been registered in regard to the granted land, but he states: which means, there is no registration in accordance with the Registration Act. Therefore, admittedly merely because there is a 'on demand promissory note' disclosing borrowing of Rs. 400/- from the petitioner, it is for him to hold that the land in question came to be alienated byway of mortgage in favour of the petitioner. To that extent the assistant commissioner committed a wrong. Therefore the conclusion based upon this assumption must be held to be incorrect. Therefore, the provision of the Karnataka scheduled castes and scheduled tribes (prohibition of alienation of certain lands) Act, 1978, cannot be implied with a view to give relief in favour of the 3rd respondent. ( 13 ) I want to make it clear while disposing of the writ petition, in the event of any piece of land in sy. No. 1/79 or in any other sy. No. , If granted in favour of the father of the 3rd respondent in accordance with the karnalaka land grant rules and that the said land having been alienated, it is open to the 3rd respondent to make out a case afresh without reference to the order of the assistant commissioner at Annexure-C. ( 14 ) DEALING with the last question that although the deputy commissioner granted interim stay on 12-12-1990 on the appeal presented by the petitioner, on the very next day, i. e. , on 13-12-1990 the assistant commissioner passed the impugned order at Annexure-E , which resulted in dispossession of the land in favour of 3rd respondent. Sri F. V. Patil, learned counsel for the petitioner submitted that the assistant commissioner was not right in doing so. By a perusal of annexurc-e, it is made clear that the assistant commissioner proceeded to pass an order. Sri F. V. Patil, learned counsel for the petitioner submitted that the assistant commissioner was not right in doing so. By a perusal of annexurc-e, it is made clear that the assistant commissioner proceeded to pass an order. In the operative portion of Annexure-E , based upon the order made by him on 29-11-1990 vide Annexure-C by which he declared the alienation of the granted land as null and void and thereby directed the restoration of the granted land. The legal question is whether the assistant commissioner failed to obey the interim order of stay granted by the deputy commissioner on 12-12-1990 on the appeal. Sri F. V. Patil, learned counsel for the petitioner, has not been able to pin-point to convince the court as to whether the interim order of stay granted on 12-12-1990 by the deputy commissioner, was in fact communicated to the assistant commissioner so as to enable him to obey that order. In the absence of such evidence I must presume that the assistant commissioner was well within his powers to pass the impugned order at Annexure-E , if the order of the deputy commissioner passed on 12-12-1990 was not communicated to him officially. Therefore, there is no point in finding fault with the order of the assistant commissioner, be that as it may, still if the petitioner as requested, wish to prosecute the opponent it is open for him to do so. Despite service of notice issued by this court the 3rd respondent has remained absent. Therefore, he has no benefit of his say. For these reasons, I make the following ordcr:- writ petition is allowed reserving the liberty to 3rd respondent to make out a case if he is also seeking relief in accordance with law. This will not come in the way of the petitioner seeking restoration of the land which he has said to have been lost by virtue of Annexure-E. Impugned order at Annexure-C is quashed. No costs. Sri Sidda Gangaiah, learned high court government pleader, is directed to file his memo of appearance in respect of Respondents-1 and 2 within two weeks. --- *** --- .