S. N. NAGENDRA v. HUCHAIAH — 1997 DIGILAW 563 (KAR)

H. N. TILHARI, J. ( 1 ) BY this petition under Article 226 of the Constitution of India, the petitioner who is a purchaser from the grantee has challenged the orders dated 20-12-1989, passed by the Assistant commissioner, Revenue Sub-Division, Chickmagalur, in proceedings under Section 5 of the Karnataka Scheduled castes/scheduled Tribes (Prohibition of Transfer of Certain lands) Act, 1978 (Act No. 2 of 1979), as well as the order of the deputy Commissioner, Chickmagalur District passed in Appeal ptl: 60: 89-90, dated 9-7-1991, dismissing the appeal of the alienee and affirming the order of the Assistant Commissioner. ( 2 ) THE facts of the case in brief are that original grantee Manjaiah, who belonged to "adi Karnataka" community which is one of the Scheduled Caste communities, had been granted land measuring 4 acres 7 guntas of Sy. No. 146, vide, Memo No. SDCPR 5: 53-54, dated 12-12-1953 and in whose favour Saguvali chit has been handed over on 13-10-1954, at the rate of Rs. 2/- for 1 acre 33 guntas and 2 acres 14 guntas were granted at the rate of Rs. 10/- per acre. After the death of Manjaiah, the original grantee, his son, Bettaiah sold the land to one sathyappa vide. , sale deed dated 14-10-1980 and the said sathyappa sold that land to one S. N. Nagendra, vide. , sale deed dated 20-10-1980. Application under Section 5 was made on 27-4-1988 under Section 5 (1) of Act 2 of 1979, by the son of the grantee namely present respondent 1 in the writ. petition for reliefs mentioned under Section 5 of the Act. The Assistant commissioner, namely, respondent 3, allowed the application, after having taken the view that the transfer has not been made after obtaining the permission or approval of the State government and restriction on alienation was without any limit of time, so the transfer made by the grantee as per sale deed dated 14-10-1980, has been null and void and it did not confer title or right to Sathyappa, nor could Sathyappa pass on any rights or title in favour of the present petitioner by deed dated 20-10-1980 and the subsequent deed dated 20-10-1980 was also illegal and inoperative. ( 3 ) FEELING aggrieved from the order of the Assistant Commissioner, the petitioner filed the appeal under the Act, and the Deputy Commissioner, by his order dated 9-7-1991, dismissed the petitioner's appeal and affirmed the order of the assistant Commissioner. ( 4 ) FEELING aggrieved from the order of the Deputy Commissioner, the present petitioner-vendee, has come up before this Court under Article 226 of the Constitution of India. ( 5 ) I have heard Sri Harish Ananthamurthy, learned Counsel for the petitioner and Smt. Shantha Kumari, learned government Pleader for respondents 2 and 3. ( 6 ) LEARNED Counsel for the petitioner contended that the two orders passed by the Assistant Commissioner and Deputy commissioner suffer from the jurisdictional error and error of law apparent on the face of record. Sri Ananthamurthy contended that the authorities erred in holding that there was no restriction clause indicating the period of restriction relating to non-alienation clause. Sri Ananthamurthy further contended that it is the law either under the statute or the rules operating any restriction on the date of grant provided thereunder, where restriction is restriction, fixed period, or otherwise that will control the transaction of grant. Learned Counsel further contended that the grant was made on 4th August, 1953 and the law or rule applicable on that date, with respect to grant and conditions of grant will be applicable irrespective of the fact that grant or Saguvalichit contains any condition to the contrary. The learned Counsel contended that the grant in this case was made on 12th of December, 1953. Learned Counsel further contended that rules had been amended by the notification issued on 4th of august, 1953 and Rule 43, particularly Clause 8 thereof had been modified and amended and thereunder it has been specifically provided that the land granted shall not be alienated for a period of 20 years. This being the position, learned Counsel contended that the bar of non-alienation or bar against alienation was operative for the period of 20 years from the date of grant and it ceased to operate after the expiry of 20 years period from that date. Learned Counsel further contended that occupancy rights under Mysore Revenue Code have been made heritable and transferable subject to restrictions provided under laws or the rules framed. Learned Counsel further contended that occupancy rights under Mysore Revenue Code have been made heritable and transferable subject to restrictions provided under laws or the rules framed. Learned Counsel contended that in that view of the matter, after the expiry of 20 years period from the date of grant, the grantee had a right to make alienation of the rights conferred on the land. Learned Counsel contended that in this case the transaction of sale had been made vide, deeds dated 14-10-1980 and 22-10-1980, that is almost 26 or 27 years after the date of grant. The period of operation of non-alienation clause, had expired by then, so the transfer could not be held to be null and void and it has wrongly been held to be illegal, null and void. Learned Counsel further contended, so far as the permission or approval of the Government is concerned, it is not to apply in case of alienations made after the expiry of the period of non-alienation clause. The question of approval may arise if the transfer is to be made within the period of operation of non-alienation clause. The alienation in the present case having been made long after the expiry of 20 years period prescribed by grantee in favour of the petitioner has not been illegal and was illegally declared to be null and void and inoperative. ( 7 ) I have applied my mind to the contentions made by the learned Counsel for the petitioner. The admitted position is that the grant had been made on 12-12-1953. This position is not disputed that the grantee belongs to Scheduled Caste and that grant was free grant or it was in one case for reduced upset price. The only question is whether the non-alienation clause was operative for time memorial or for a limited period. As the grant has been made on 12th of December, 1953 and the saguvali Chit has been issued in this case on 13-10-1954, the law that will be applicable will be the one as it had been under the rules on the date of the grant namely the laws existing after 1953. Rule 43 no doubt had been amended by the Mysore State under Section 233 of Mysore Land Revenue Code (1888) Mysore act No. IV of 1988, by the Government of Mysore. Rule 43 no doubt had been amended by the Mysore State under Section 233 of Mysore Land Revenue Code (1888) Mysore act No. IV of 1988, by the Government of Mysore. The amended clause (g) deals with non-alienation clause or provides for restriction or prohibition against alienation. Rule 43 (8) as amended in 1953, read as under:"the grant of lands under sub-rules (1) and (5) to persons belonging to depressed classes for an upset price or reduced upset price and to poor persons not owning any land shall be subject to the condition that the land granted shall not be alienated for a period of twenty years from the date of the grant and the grantees shall also execute mutchalikas in the form prescribed by Government: provided that such land may be accepted as security for loans obtained from Government or from a Co-operative society for the purpose of improving the land. "alienation made contrary to this rule shall result in summary resumption of the land so granted and such land shall vest in Government free of all encumbrances and neither the grantee nor the alienee shall be eligible for any compensation". ( 8 ) A perusal of this rule per se reveals that it has been provided thereunder that the grants made during the operation of this rule has been made subject to the condition that the land granted shall not be alienated for a period of 20 years from the date of grant and if alienation is made contrary to the rule, then it shall result in summary resumption of the land and the land will vest in the Government and in that case, neither the grantee nor the alienee shall be entitled to possession. ( 9 ) IN the present case, the transaction of sale dated 14-10-1980 or 22-10-1980, prima facie appear to have been made in favour of the petitioner after the expiry of more than 27 years period, that is after the expiration of the period of non-alienation clause. Restriction had ceased to operate with effect from 12-12-1973. The transaction is of 1980. Under Mysore Code, vide, Section 70, of the Mysore Land Revenue Act, it has been provided that occupancy rights granted are alienable. Restriction had ceased to operate with effect from 12-12-1973. The transaction is of 1980. Under Mysore Code, vide, Section 70, of the Mysore Land Revenue Act, it has been provided that occupancy rights granted are alienable. Section 70 of the Mysore Land Revenue Act provides and reads as under:"the right of occupancy shall be deemed an inheritable and transferable property subject to the provisions contained in Section 54, or otherwise prescribed by law and shall Immediately pass to the person whose agreement to become an occupancy shall have been accepted by the deputy Commissioner". ( 10 ) A reading of Section 70 per se discloses that it is only subject to the provisions of Section 54 or subject to otherwise prescribed by any other law, the rights of occupancy granted by the Government shall be deemed and taken to be heritable and transferable. Here the Rule 43, as it existed that is on the date of the grant, it prescribed restriction against alienation to be operative for 20 years from the date of grant. It means after the expiry of 20 years the restriction against alienation ceased to operate and it did cease, in the present case, on 12-12-1973, as in the present case the grant as been made on 12-12-1953. ( 11 ) IN that view of the matter, in my opinion, though the transfer made by the grantee vide, deed dated 14-10-1980 and 12-10-1980, have been made long after the expiry of the period of operation of the non-alienation clause, but the matter does not stop at this juncture. The transfers exhibited have taken place in these cases after 1-1-1979 i. e,, the date of enforcement of Act No. 2 of 1979. ( 12 ) LEARNED Counsel for the petitioner contended that as the transfer has been made after the expiry of non-alienation clause, it was valid. With reference to Section 4 of the Act, learned counsel contended that in view of Manchegowda and Others v state of Karnataka and Others, it could not be deemed to be null and void under Section 4 of the Act and when registration was done, it was to be deemed to have been permitted by the government. ( 13 ) THIS contention has been hotly contested as well by the government Pleader Smt. Shantha Kumari. ( 13 ) THIS contention has been hotly contested as well by the government Pleader Smt. Shantha Kumari. ( 14 ) IN my opinion this contention of the learned Counsel for the petitioner that as the period of bar had expired long before, the execution of the sale deed, the sale should be deemed to be valid and not hit by the provisions of the Act, is without substance. Section 4 (1) of the Act in clear terms provides that notwithstanding anything contained in any law, agreement, contract or instrument, the transfer of the granted land may either before or after the commencement of Act 2 of 1979, even in contravention either (a) of the terms of the grant of (b) in contravention of the provisions of law providing for such grant, or it is in contravention of sub-section (2) of Section 4 of the Act, it shall be null and void and no right, title or interest in such land shall be conveyed nor be deemed ever to have conveyed by such transfer. ( 15 ) SUB-SECTION (1) of Section 4, declares transfers of both whether earlier to the coming into force of the Act or made after coming into force of the Act, to be null and void and the conditions specified therein, irrespective of what is provided in any other law or agreement of contract. The transfer that is made earlier of the granted land, that is prior to the coming into force of the Act, after expiry of the period of non-alienation clause and not being in contravention of the prohibition contained under the rules, it is beyond doubt does not come within the purview of the Act as held in Manchegowda's case, supra, but Manchegowda's case, supra, does not lay down that in case of a transfer made after the commencement of the Act, if it is in breach of sub-section (2) of Section 4, it shall not be null and void. We may distinguish between the two types of cases cases in which granted land has been transferred before coming into force of Act 2 of 1979; if such a transfer is made after the expiry of the period of non-alienation clause, the transfer is valid and it cannot be covered by the provisions of the Act. We may distinguish between the two types of cases cases in which granted land has been transferred before coming into force of Act 2 of 1979; if such a transfer is made after the expiry of the period of non-alienation clause, the transfer is valid and it cannot be covered by the provisions of the Act. But where the transfer of the granted land is made after the commencement of this Act, that is on a date after 1-1-1979, then what is requisite is that it should not be made in contravention of the terms of the grant (1 ). It should not have been in contravention of the provisions relating to grant; and a further rider has been put by sub-section (2) that transfer cannot be made without seeking permission of the State Government. Neither transferee can acquire the granted land by transfer from the grantee without seeking permission of the Government, nor the grantee can transfer it without seeking permission of the government. This is an additional bar. It means that even if for a moment it be taken as in the present case that the transfer had taken place after the expiry of the period of non-alienation clause prescribed or provided under grant or rules, even then as the transfer could not be made after the commencement of this act, on any date, without seeking permission of the Government, if it is or has been made after the commencement of the Act and it has been made without seeking permission of the Government. Then irrespective of what is contained in any other law, document or instruments, such transfer shall be void, null and in-operative. ( 16 ) IN the present case, the transfer has been made in favour of the petitioner on 22-10-1980 and 14-10-1980. These transfers which have been made in favour of the petitioner are beyond doubt after the date of commencement of this Act. Sub-section (2) of Section 4 says that no person shall after the commencement of this Act, transfer or acquire by transfer any granted land without previous permission of the Government. Thus sub-section (2) of Section 4 puts a bar against transfer and the bar is only to be removed by the grant of permission. Sub-section (2) of Section 4 says that no person shall after the commencement of this Act, transfer or acquire by transfer any granted land without previous permission of the Government. Thus sub-section (2) of Section 4 puts a bar against transfer and the bar is only to be removed by the grant of permission. ( 17 ) IN the present case as I have mentioned earlier, no permission has been sought nor has been granted by the government, either to the transferee or the transferor. Therefore, these transfers exhibited by deeds dated 14-10-1980 and 22-10-1980 are in breach and contravention of the provisions of sub-section (2) of Section 4 and as such the transfers have been declared by sub-section (1) of Section 4, to be null and void and such transfers shall neither convey nor shall be deemed to convey any interest etc. , to transferee. In this view of the matter, in my opinion, the authorities below did not commit any error of law or of jurisdiction in passing the order impugned under Section 5 of the Act, ordering resumption and restoration of land in favour of the grantee. Thus considered the writ petition is devoid of merits and is hereby dismissed. Costs are made easy. --- *** --- .