UMMAR HAJI v. DEPUTY COMMISSIONER, COORG — 1991 DIGILAW 621 (KAR)

M. RAMAKRISHNA RAO, J. ( 1 ) IN this writ petition under Articles 226 and 227 of the constitution, the petitioner has questioned the legality and correctness of the orders, Annexures-B and C, made by the assistant commissioner and the deputy commissioner, respondents 2 and 1 herein respectively. He has sought for quashing the same for the reasons stated in the writ petition. ( 2 ) TWO acres of land in sy. No. 2/17 situated in badaga banangala village, virajpet taluk, coorg district, were granted, purported to be under Rule 122 (2) read with Rule 123 (4) of the rules framed under the coorg land and revenue regulation (no. 1 of 1899) (regulation for short), by the deputy commissioner, kodagu, in favour of harijan byra mestri, by his order dated 16-5-1967 in proceedings No. C6. 7207/1957-58, subject to condition, inter alia, that the land shall not be alienated for a period of 15 years from the date of the grantee taking possession of the land. Pursuant to the said grant, saguvali chit was also issued to him. However, the grantee byra mestri sold the land to the petitioner under a registered sale deed dated 26-7-1975 for valuable consideration. It is the case of the petitioner that from the date of sale, he has been in possession and enjoyment of the land. ( 3 ) AFTER the Karnataka scheduled castes and scheduled tribes (prohibition of' transfer of certain lands) Act, 1978 (the act for short), came into force, respondent-3- h. b. vairamudi said to be the son of the grantee byra mestri filed an application before the assistant commissioner, respondent-2 herein, for granting him reliefs under sections 4 and 5 of the act on the ground that his father sold the granted land in contravention of the condition of the grant and that therefore he was entitled for the reliefs. ( 4 ) THE assistant commissioner having notified both parties and having held anenquiry as required by Rule 3 of the rules framed under the Act, passed an Order, as per Annexure-B impugned herein, declaring the alienation made in favour of the petitioner in respect of the land in question as null and void and directing restoration of the same to the government for being granted to lr of the original grantee. ( 5 ) AGGRIEVED by the said Order, the petitioner appealed to the deputy commissioner in No. Sc. St. ( 5 ) AGGRIEVED by the said Order, the petitioner appealed to the deputy commissioner in No. Sc. St. Apl. 11/1985-86. The deputy commissioner having heard learned counsel on both sides dismissed (he appeal, affirming the conclusion of the assistant commissioner. Hence this petition. ( 6 ) SRI basavaraju, learned counsel for the petitioner, urged that the condition imposedin the grant prohibiting the alienation of the granted land for a period of 15 years was incorrect, inasmuch as sub-rule (2) of Rule 122 of the rules framed under the Regulation, under which the land was granted, does not provide for such a condition. According to him, the Rule prohibits only alienations without the orders of the assistant commissioner. In the instant case, byra mestri applied for permission to sell the land and obtained the same as per Annexure-A from the deputy commissioner. Therefore, in the absence of specific provision expressly requiring previous permission to swll the granted land, the permission obtained subsequent to the saleof the land in favour of the petitioner would ipso facto validate the sale. He further contended that respondent-2-vairamudi, not being the son of the original grantee byra mcstri, was not entitled to seek reliefs under the act. However, his application was considered and reliefs granted by the authorities below. Thus, he submitted that the impugned orders were liable lo be quashed as illegal. ( 7 ) SRI m. Siddagangaiah, learned high court government pleader for respondents-1 and 2, produced the original records and argued in support of the impugned orders. ( 8 ) RESPONDENT-3-VAIRAMUDI, though served, remained absent and unrepresented. ( 9 ) I do not see any substance in the arguments of the learned counsel for the petitioner. As regards the actual date of grant of land in favour of byra mestri, the assistant commissioner, respondent-2 herein, has made it very clear in his Order, annexure-b, that though the proceedings were initiated in 1957-58, final proceedings culminating in the order of grant by the deputy commissioner in favour of byra mestri were made on 16-5-1967. Even in the Order, annexure-a, made by the deputy commissioner granting permission to byra mestry to sell the land, the date of grant has been mentioned as 16-5-1967. Thus, having regard to this date of grant, we have to consider the case on merits. Even in the Order, annexure-a, made by the deputy commissioner granting permission to byra mestry to sell the land, the date of grant has been mentioned as 16-5-1967. Thus, having regard to this date of grant, we have to consider the case on merits. ( 10 ) OFCOURSE, it has been mentioned in the order of grant (form ii), a copy of which is produced before the court, that the grant was made under Rule 123 (4) read with Rule 122 (2 ). The original rules embodying rules 122 (2) and 123 framed under the regulation came to be repealed by the coorg land grant rules, 1960 (the rules of 1960 for short) which came into force with effect from 15-9-1960. The land in question, as stated above, was granted on 16-5-1967, in favour of byra mestri, when already the rules of 1960 were in force. That being so, question of granting the land under the repealed rules did not arise. Moreover the deputy commissioner could not grant a land under the repealed rules when the repealing rules were already in force. However, it is mentioned in the order of grant as if the land was granted under Rule 122 (2) r/w Rule 123 (4), which is factually incorrect and cannot be acted upon. So, for all purposes it must be taken that the grant was made under the rules of 1960. ( 11 ) NOW, the question that arises for consideration in this writ petition is whether the authorities below were right in declaring the alienations in question as null and void and directing the vesting of the land to the government for being disposed of in accordance with law. ( 11 ) NOW, the question that arises for consideration in this writ petition is whether the authorities below were right in declaring the alienations in question as null and void and directing the vesting of the land to the government for being disposed of in accordance with law. ( 12 ) SUB-RULE (4)-of Rule 10 of the rules cf 1960 provides:"where the grant is made free of cost, or is made at a price which is less than the market value of the land or where the occupancy price is waived either wholly or partially, the grant shall be subject to the condition that the land shall not be alienated for a period of fifteen years from the date of the grantee taking possession of the land: provided that such land may be alienated with the previous sanction of the government and subject to such conditions as the government may specify, if the government is of the opinion that in the circumstances of any case it is just and reasonable to permit such alienation either for purposes of acquiring some other land or for any other purpose". ( 13 ) FROM the above Rule, it is very clear that, first of all, the land shall not bealienated for a period of 15 years from the date of the grantee taking possession of it and if at all the grantee wants to alienate it, he must obtain prior permission from the government in the instant case, the original grantee sold the land granted to him on 16-5-1967 in favour of the petitioner under a registered sale deed dated 26-7-1975, within the prohibitory period of fifteen years. To do so, previous permission was accessary as required by the Rule excerpted above. But the grantee did not obtain such permission as on the date of sale; but obtained the same subsequent to the sale. The subsequent permission obtained for the purpose of sale cannot validate the sale made earlier to it in favour of the petitioner, in view of the express provision contained in Rule 10 of the rules 1960. Therefore, there is no alternative but to hold that it was a sale made against the condition of the grant. That being so, it must be declared as null and void as required by Section 4 of the act. Therefore, there is no alternative but to hold that it was a sale made against the condition of the grant. That being so, it must be declared as null and void as required by Section 4 of the act. The assistant commissioner has rightly done so and the deputy commissioner has also rightly upheld the view taken by the assistant commissioner. Hence, I do not see any good ground to interfere with the conclusion reached by them in this behalf. ( 14 ) DEALING with the next contention that vairamudi is not a direct descendant of the deceased byra mestri, it is clear from the observations made by the assistant commissioner in the impugned order (Annexure-B), that two witnesses, viz. , Cheluva and linga were examined by the assistant commissioner and cross-examined by the opposite party; that cheluva deposed that vairamudi, respondent-3, herein and the two children were born to Smt. Devi with her wedlock with one harijan buddi; that, on the death of harijan buddi, their mother Smt. Devi remarried byra mestry by whom linga was born; that this fact was not countered by the petitioner in the cross-examination and that linga also stated that he was the son of byra mestry and respondent-3 the first husband of Smt. Devi. Therefore, vairamudi, respondent-3, herein, cannot be said to be a direct descendant of the grantee byra mestry. As a matter of fact, accepting the evidence, the assistant commissioner held that after the vesting of the land in the state government pursuant to Section 5 of the Act, the land shall be restored in favour of h. Linga, one of the sons -of the grantee, byra mestry. Indeed, this was not challenged by the applicant, the third-respondent even before the deputy commissioner. Therefore, the deputy commissioner did not modify the conclusion reached by the assistant commissioner in his order. ( 15 ) IN this behalf, Sri Basavaraj argued that, if the application was not presented by a competent person seeking reliefs under the Act, the said application should have been rejected and the whole proceedings based upon such application became invalid. Therefore, the deputy commissioner did not modify the conclusion reached by the assistant commissioner in his order. ( 15 ) IN this behalf, Sri Basavaraj argued that, if the application was not presented by a competent person seeking reliefs under the Act, the said application should have been rejected and the whole proceedings based upon such application became invalid. ( 16 ) I do not think I can subscribe to this view, because when Section 5 of the actprovided for initiation of action either on application by any interested person or on information given in writing by any person or suo motu, the assistant commissioner even without an application by any interested person can initiate action and, if satisfied, declare transfer of granted land as null and void, if such transfer is found to be in contravention of the condition of the grant. That being so, there is no reason why this court should find fault with the action taken by the assistant commissioner on an application though presented by the third-respondent seeking relief, as, it is only after the enquiry, the assistant commissioner has come to know that such an applicant would not be entitled for the relief. The enquiry held by the assistant commissioner, on the other hand, is perfectly justified, because the object of the act is to see that wherever the granted land is alienated or transferred there should not be any contravention of the condition of the grant. Thus this contention also fails. ( 17 ) ONE more submission of Sri Basavaraj is that the grantee, having sold the granted land, purchased another land in periapatna out of the sale consideration that, therefore, equity is in favour of the petitioner who is the purchaser of the granted land, and that this must be taken into consideration by the court while upholding the conclusion of the authorities below. may be, the grantee purchased another land, as stated above. But, when we see the object sought to be achieved under the Act, it is not possible to hold that the Provisions of the act cannot be pressed into service merely because out of the sale proceeds of the granted land, the grantee was able to obtain some other land. may be, the grantee purchased another land, as stated above. But, when we see the object sought to be achieved under the Act, it is not possible to hold that the Provisions of the act cannot be pressed into service merely because out of the sale proceeds of the granted land, the grantee was able to obtain some other land. No doubt, the equities, by virtue of the transaction referred to above is in favour of the petitioner, but since the act is silent aboutthe equities or improvements made on the granted land to be taken into consideration by the court, this court cannot make any observation so as to enable the petitioner to retain the granted land. ( 18 ) IN the result, the writ petition fails and is dismissed without any order as tocosts. Sri M. Siddagangaiah, HCGP, is permitted to file his memo of appearance. --- *** --- .