B. N. YAGATAPPA v. GADLAPPA — 1997 DIGILAW 416 (KAR)

H. N. TILHARI, J. ( 1 ) HEARD learned counsel for the petitioner-sri s. v. prakash and Sri c. b. minajagi for respondents 1 to 7 and Smt. Shanthakumari learned government pleader for respondents 8 and 9. These petitions raise common question of law in the contest of common facts so are being disposed off by common order. ( 2 ) BY these petition, the petitioners have sought the issuance of writ of certiorari and the quashing of the order passed by the assistant commissioner, shimoga dated 16-8-1995, in case No. Sc/st 68 of 1985-86, on 9-6-1997, copy of which is Annexure-B to the writ petition, as well as quashing of the order passed by the deputy commissioner, shimoga in sc/st case No. 68 of 1985-86, on 9-6-1997, and also the order of the assistant commissioner, shimoga sub-division, shimoga in case nos. Ptcl. Cr. 272 of 1979-80, 275 (b) of 1979-80, 276 of 1979-80, 277 of 1979-80, 278 of 1979-80, 284 of 1979-80 and 285 of 1979-80. ( 3 ) THE facts of the case in brief are that the land in question involved in these cases were granted under durkasth payment system, by an order dated 21-10-1962. The survey number involved in these cases, as mentioned in paragraph 3 of the writ petition was divided into 8 blocks. Out of 8 blocks, 6 blocks contained 32 guntas each and two blocks contained 31 guntas each. The original grantees sold these blocks granted to them, to one basavanneppa under registered sale deed dated 24-8-1966 and the transferee according to the petitioner's case was put in the possession of the lands. Said basavanneppa sold the lands to lalithamma under registered sale deed and lalithamma sold these lands to the petitioner. Proceedings under Section 5 (1) of the scs/sts (prohibition of transfer of certain lands) Act, 1978 (act 2 of 1979) were initiated on the report of the tahsildar, shimoga, to the assistant commissioner. ( 4 ) IN the writ petition, it has been stated that neither the petitioner nor shivalingegowda, who were arrayed as the respondents in the proceedings were served with show-cause notice. From a perusal of the order of the assistant commissioner, it appears that on 24-1-1981 show-cause notice had been issued to the respondents, calling them to show-cause within 15 days to the notice, why land in question should not be restored to the applicants or the grantees. From a perusal of the order of the assistant commissioner, it appears that on 24-1-1981 show-cause notice had been issued to the respondents, calling them to show-cause within 15 days to the notice, why land in question should not be restored to the applicants or the grantees. But the respondents failed to furnish any explanation or reply to the show-cause notice within the stipulated time. Thereafter the assistant commissioner clubbed the cases together and enquiry was made and further notice was issued to the applicants-respondents to attend the hearing of the cases. On the second notice of hearing, both the parties that is the applicants and respondents attended the court and after perusal of the records the assistant commissioner passed the order declaring the sale transactions in question to be null and void, under Section 4 (1) of the Act, as according to the assistant commissioner, the alienation of the land was in breach of non-alienation clause, which was contained in the grant, subject to which the grants was made. The assistant commissioner, further directed that the land after resumption would be restored to the applicants under Section 5 (l) (b)of the act. ( 5 ) HAVING felt aggrieved from the order of the assistant commissioner, the petitioner filed the appeal, which were finally disposed of and dismissed and the deputy commissioner passed the order dated 9th june, 1997 dismissing the petitioner's appeal No. 68 of 1985-86 as rejected and so the petitioner has come up in this court, from this order dated 9-6-1997. Before proceeding further to complete the facts, it may also be mentioned, as appears from the order of the deputy commissioner itself that appeal No. 68 of 1985-86, had been dismissed on 8-2-1990, for non-prosecution, then matter had come up in writ petition No. 7943-a to 7943-f of 1990, and this court by order dated 30-10-1990, allowed the writ petition and remanded the matter to the authorities for decision according to law after hearing the parties. ( 6 ) I have heard the learned counsel for the petitioner as mentioned earlier and the respondent. Learned counsel for the petitioner submitted that the order impugned is bad in law and suffers from jurisdictional error and that the authorities have not recorded any finding whether the original grantee belonged to scheduled caste nor did record any finding as to the nature of the grant. Learned counsel for the petitioner submitted that the order impugned is bad in law and suffers from jurisdictional error and that the authorities have not recorded any finding whether the original grantee belonged to scheduled caste nor did record any finding as to the nature of the grant. The learned counsel further contended that in view of the decision of this Court in Pedda Reddy v State of Karnataka and others , in order to resume the land in question under Section 5, the findings had to be recorded by the authorities, on the question whether the grantee belongs to scheduled caste or scheduled tribe; what is the nature of the grant; whether it was a free grant or whether it was a grant for full market value and whether the grant was subject to non-alienation period or whether there has been violation of non- alienation clause. Learned counsel further contended that here the land was sold or granted for Rs. 50/- to the grantee and this was upset price and therefore, there was no question of non-alienation clause nor can the Provisions of act 2 of 1979, could be applied. ( 7 ) THESE contentions have hotly been contested on behalf of the respondents. No doubt it is one of the trite principles of law in the matter of resumption of land that the authorities if there is in particular a dispute whether a person belongs to the scheduled caste or scheduled tribe is involved, it has to be decided. The nature of the grant has also to be ascertained and the authority is also required to enquire and decide whether there has been non-alienation clause and the transfer was in violation of that non-alienation clause. There cannot be any dispute so far as the bare principle of law is concerned. But in the present case, the petitioner cannot succeed on such basis. Petitioner's counsel has admitted that the grantee did belong to adidravida caste and he stated that he has stated so on the basis of the written contentions of the respondent before the deputy commissioner. A perusal of the order per se also shows that respondents counsel has stated that the respondents belong to adidravida caste. Adidravida caste no doubt is a scheduled caste. A perusal of the order per se also shows that respondents counsel has stated that the respondents belong to adidravida caste. Adidravida caste no doubt is a scheduled caste. The deputy commissioner as mentioned above has observed in his Order, declared and provided that the lands have been transferred within the period of non-alienation clause i. e. , grantees have transferred the granted land within 2 years and the grantees belong to scheduled caste. As such the assistant commissioner has rightly held the transaction to be void in the proceedings as above and passed order of restoration. ( 8 ) THE grantee belongs to the scheduled caste. The petitioner does not appear to have anywhere stated that the grantees did not belong to adidravida caste, either before the assistant commissioner or before the deputy commissioner. In my opinion the authorities concerned were justified in taking that the grantees belong to adidravida caste and so they were justified in assuming and taking as well holding that the grantees belong to scheduled caste. As regard the question of nature of the grant, it is very much clear from the order of the deputy commissioner that he has considered this aspect of the matter. The observations of the deputy commissioner read as under: "as per the decision of the Hon'ble high court, the value of 1-00 acre fixed for Rs. 50/- and granted to respondent on upset price and the saguvali chit was issued on 24-8-1966. The land was sold to one basavanneppa under s. r. No. 1988, dated 24-8-1966, for Rs. 200/- by the original grantee on the very same day, but the land was sold to original grantee for only Rs. 50/ -. So, it is clear that the land was not granted for upset price. Therefore, the above land was granted below the market price. As such the period of non-alienation put in the saguvali chit not to transfer for a period of 15 years, put by the tahsildar, as per the provision of the karnataka land grant rules (amended), 1960, Rule 43-g (4) is valid and correct". ( 9 ) LEARNED counsel for the petitioner contended that the upset price of Rs. 50/- was sufficient price and he tried to place the decision before me in the case of G. N. Vema Reddy v State of Karnataka and others, with reference to the land involved in the case. ( 9 ) LEARNED counsel for the petitioner contended that the upset price of Rs. 50/- was sufficient price and he tried to place the decision before me in the case of G. N. Vema Reddy v State of Karnataka and others, with reference to the land involved in the case. It was observed that it was not possible for the court to take Rs. 50/- was not the value of upset price. Learned counsel emphasised on Rule 43 to provide that upset price shall not be arbitrarily fixed, but shall represent the actual market value of the land as nearly as can be ascertained from local enquiries and by examination of records of sale of land. Learned counsel contended this court must presume that the upset price under official act did not exceed the amount paid. This presumption under Section 114 of the Evidence Act is rebuttable. The deputy commissioner having looked to the transaction of 24-8-1966, that the land was sold for Rs. 200/-, when original grantee was receiving it for Rs. 50/-, found that Rs. 50/- did not represent the full market value. This is nothing but a pure and simple finding to the effect that the presumption with relation to the official act stood rebutted and it is to be treated as to be a finding recorded by the commissioner that the grant was made for something less than the full market value is a pure and simple finding of fact. This court under article 226 is not to sit in appeal on that point. Therefore, there is a finding recorded by the deputy commissioner that the grant was for less than full market value. Rule 43-g, sub-rule (4) of the rules, admittedly provides in a case where grant is a free grant or a grant for less than the full market value, the non-alienation provision prohibiting the transfer of granted land by the grantees for 15 years would be applicable and in the present case, the transfer has been made by the grantee within the period of operation of non-alienation clause and the rule. Therefore, in my opinion, the deputy commissioner did not commit any error of law or jurisdiction in holding and recording finding as above. Therefore, in my opinion, the deputy commissioner did not commit any error of law or jurisdiction in holding and recording finding as above. ( 10 ) LEARNED counsel for the petitioner lastely contended that he was claiming title by adverse possession and his claim was that act 2 of 1979, could not apply and did not apply to the case in question and it was not in power of the government to resume the land and thereafter to restore the land to the grantee or not. The government is the owner of the land. Under Mysore revenue Act, 1880, there are Provisions under chapter 6 bearing title "of the occupation of unalienated land and the rights of occupants". It deals with occupancy rights also. Section 58 of the act provides that written permission of amildar is required previous to taking up of unoccupied land and for grant of occupancy rights. Section 66-a, also deals with power of deputy commissioner to grant permission to occupy land temporarily. Section 58 provides that any person desirous of taking up unoccupied land which has not been alienated must, previously to his entering upon occupation, obtain the permission in writing of the amildar or deputy amildar, or as may be provided under rules made in this behalf under Section 233. Rule 43 as subsequently Rule amended in 1960, appear to have been made under Section 233 of Mysore act 4 of 1988, namely under the Provisions of Section 233, clause (h ). A reading of Section 58 clearly indicates that when the land is granted and a person is allowed to occupy the land so as to make use of it, a permission is granted to such grantee. When right of occupancy is granted Section 70 makes right of occupancy to be heritable and transferable, subject to the Provisions contained in Section 54, or otherwise prescribed by law. These rules that had been framed under this Section 233, very clearly provide from time to time creating a bar against alienation. Earlier to 1938 rules, the bar against alienation was for 20 years and by amendment of Rule in 1938, introducing Rule 43 (8), the bar of non-alienation was created for all times and this position of law continued till 1953. Earlier to 1938 rules, the bar against alienation was for 20 years and by amendment of Rule in 1938, introducing Rule 43 (8), the bar of non-alienation was created for all times and this position of law continued till 1953. When again rules were amended in regard to non-alienation clause, possession was again restored, that is for 20 years there shall be no alienation of the granted land. Subsequent to 1953, in 1956 again Rule was modified and in 1960, lastly when rules were framed, they introduced provision that when land is granted and it is a free grant or it is a grant for price less than full market value, non-alienation clause will operate for 15 years. ( 11 ) WHAT I want to emphasise here is that ordinarily when under rules framed under Section 233, the land is granted, the nature of the grant ordinarily is the permission granted to the grantee to occupy the unalienated and unoccupied land of the government and to make use of it. When permission is granted by the government then it necessarily follows ownership rights remain with the government. Subject to the Provisions referred in Section 70 itself, under Section 70, a grantee may transfer his own rights of enjoyment, but again after fulfilling the conditions prescribed by the rules and law touching that subject-matter. So there is no transfer of ownership of the land ordinarily in favour of the grantee, unless otherwise shown or established, the ownership rights remains with the government of the state. Then for claiming accrual of title by adverse possession, the claimant has to specifically plead and prove that he has been in possession and enjoyment of the granted land for 30 years or more adversely and in hostility to the owner. In cases where from the grant itself it appears that the ownership proprietory rights have been granted in the land to the grantee, then question of 12 years adverse possession against grantee may arise and a person may claim and prove to have been in hostile and adverse possession for 12 years. In the present case, it has never been pleaded that ownership rights were granted by the government in favour of the grantee and in the present case transaction of transfer had taken place on 24-8-1966. act 2 of 1979 came into operation on January 1, 1979. In the present case, it has never been pleaded that ownership rights were granted by the government in favour of the grantee and in the present case transaction of transfer had taken place on 24-8-1966. act 2 of 1979 came into operation on January 1, 1979. So only utmost 12 years may be said to have passed on the date the act came into force and in such a case, there is no question of accrual of title by adverse possession in favour of the transferee prior to the enforcement or coming into force of act 2 of 1979 and this being the position, definitely Provisions of act 2 of 1979 would have been applicable and were rightly held to be applicable. Thus considered in my opinion, the orders impugned in these petitions do not suffer from error of law or jurisdiction. Petitions are without substance and are hereby dismissed with costs made easy. --- *** --- .