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1999 DIGILAW 297 (KAR)

N. D. RANGAPPA v. DEPUTY COMMISSIONER, DAVANGERE

1999-06-16

HARI NATH TILHARI

body1999
( 1 ) THIS writ petition is directed against the order dated 10-3-1998 (An-nexure-B to the writ petition) whereby the Deputy Commissioner has affirmed the order of the Assistant commissioner, Davangere Sub-Division, Davangere. The petitioner has sought quashing of order dated 10-3-1998 passed by the Deputy Commissioner as well as order dated 26-7-1997 passed by the Assistant Commissioner. ( 2 ) THE facts of the case in brief are that, land bearing Sy. No. 24 (new No. 75) measuring 1 acre 30 guntas situated at Sulthanipura, Maikonda Hobli, Davangere Taluk and District, was granted in favour of respondent 3 on 8-6-1954. There was a condition in the grant itself prohibiting the alienation of the granted land for ten years' period. The respondent 3, according to the petitioner, sold the land to the present petitioner under registered sale-deed dated 24-3-1970 and the petitioner claimed to be in possession and enjoyment of the said land since the date of sale or alienation thereof in his favour by the respondent 3. The proceedings under Section 5 were initiated on the report of the Tahsildar in the year 1994 under Section 5 of the Karnataka scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978, hereinafter referred to as the 'act'. Show-cause notice was issued by the Assistant Commissioner to the petitioner who filed his objections. The Assistant Commissioner by his order dated 26-7-1997 declared the alienation made by the grantee of the granted land in favour of the petitioner to be hit by Section 4 and to be null and void. The petitioner who is the purchaser preferred an appeal under Section 5-A namely S. C. PTL. 5 of 1997-98. The Deputy commissioner-respondent 1 by his order dated 10-3-1998 dismissed the petitioner's. e. , purchaser's appeal. The petitioner having felt aggrieved from the order of the Assistant Commissioner as well as Deputy Commissioner has come up before this Court by petition under Article 226 of the Constitution of India. ( 3 ) I have heard the learned Counsel for the petitioner Sri A. L. Prenia Kumar and the learned government Counsel Sri V. Jayaram for respondents 1 and 2 as well as Sri P. Dananjaya, learned counsel for respondent 3. ( 3 ) I have heard the learned Counsel for the petitioner Sri A. L. Prenia Kumar and the learned government Counsel Sri V. Jayaram for respondents 1 and 2 as well as Sri P. Dananjaya, learned counsel for respondent 3. ( 4 ) SRI Prenia Kumar submitted that the respondents 1 and 2 acted illegally in declaring the deed of transfer dated 24-3-1970 to be illegal and null and void on the basis of Section 4 (1) of the Act. The learned Counsel contended that the transfer made by the grantee of the granted land had been made after the expiry of the period often years which was the period for operation of prohibition against transfer under the terms of the grant. He submitted as grant was made in 1954 and transfer had been made in March 1970, when almost 16 years have passed. So there was no bar against transfer and the transfer could not be held to be void under Section 4. ( 5 ) ON behalf of the respondents it has been contended by the learned Government Counsel and respondents' Counsel that under the grant ten years period might have been mentioned. But as per relevant law and rules as prevailing in 1974 the bar against transfer was to operate for a period of 20 years from the date of grant. Reference has been made to notification dated 4-8-1953 and to Rule 43 (g) under that notification and it has been contended whether the grant has been for upset price. The rule provided that the granted land shall not be alienated for a period of 20 years. The learned Counsel for the respondents as well as the learned Government counsel contended that this rule did apply in 1954. So prohibition against alienation of land granted under the grant in this case was for 20 years and so was hit by the rules. The learned counsel for the respondents further contended that Section 4 (1) declares any alienation of granted land in contravention to the terms of law or of grant or of sub-section (2) shall be void. So it was rightly held to be null and void. The learned counsel for the respondents further contended that Section 4 (1) declares any alienation of granted land in contravention to the terms of law or of grant or of sub-section (2) shall be void. So it was rightly held to be null and void. ( 6 ) IN reply to the contentions raised by the learned Counsel for the respondents, the learned counsel for the petitioner contended that grant provided ten years, therefore, Rule 43 (8) as it was in 1954 could not operate in preference to the terms of the grant. He made reference to the decision of their Lordships of the Supreme Court in the case of State of Uttar Pradesh v Zahoor ahmad and Another , and to the decision of their Lordships of the Supreme Court in the case of express Newspapers Private Limited and Others v Union of India and Others. The two decisions relate to and deal with the provisions of Government Grants Act, 1895 (Central Act No. 15 of 1895 ). Originally, this Act was known as Crown Grants Act. In the case of Zahoor Ahmad, supra, their Lordships laid down that, "16. Section 3 of the Government Grants Act declares the unfettered discretion of the government to impose such conditions and limitations as it thinks fit, no matter what the general law of the land be. The meaning of Sections 2 and 3 of the Government Grants Act is that the scope of that Act is not limited to affecting the provisions of the Transfer of Property Act only. The Government has unfettered discretion to impose any conditions, limitations or restrictions in its grants, and the right, and privileges and obligations of the grantee would be regulated according to the terms of grant, notwithstanding any provisions of any statutory or common law". These two cases indicate that Section 3 of Crowns Grants Act was involved therein and their lordships had dealt with that. Here in the present case, the grant of the land has been made by the State of Mysore under the Mysore Land Revenue Code, Act No. 7 of 1887 vide Section 233 thereof. The Government no doubt had discretion and the Government was pleased to amend the rules relating to grant under the Mysore Land Revenue Code. Here in the present case, the grant of the land has been made by the State of Mysore under the Mysore Land Revenue Code, Act No. 7 of 1887 vide Section 233 thereof. The Government no doubt had discretion and the Government was pleased to amend the rules relating to grant under the Mysore Land Revenue Code. The Government has been entitled to put restrictions and Rule 43 has been framed thereunder in exercise of powers to frame rules and to prescribe as well as to amend the conditions of grant. Rule 43 (8) provides, "grants of land under sub-sections (1) and (5) to persons belonging to depressed class for an upset price or reduced upset price and to poor persons not owning lands shall be subject to conditions that land granted shall not be alienated for a period of 20 years from the date of grant. . . . . . . . ". So this is the condition imposed by the Mysore Government by providing for how long period the grantee cannot transfer or alienate the granted land. The Grant Certificate which is issued is prepared by the office, even sometimes issuance of the same is delayed for years together. So babu's or Clerk's or ignorant Tahsildar's act cannot be to change the law. It has been clearly provided that when grant is made, it shall be subjected to the conditions that alienation shall not be made for a period of 20 years as per rules operating in 1954. Merely because either the Babu or Tahsildar issued certificate without knowledge of law, striking down the condition or putting a lesser period of time of what the Government order requires, will not entitle the grantee to transfer the land within the period of prohibition prescribed by the rules. When I so opine, I find support for my view from the two decisions of this Court namely in the case S. Nagarappa and another v State of Karnataka and Others, their Lordships observe, "in other words, a cryptic entry made in the certificate contrary to condition of law will not have the effect of overruling the provisions of law existing then". Similar view was expressed in the case of Jayaram H. A. v State of Karnataka and Others, where their Lordships observe, "rules governing grants which existed on the date of grant providing restriction on alienation, they have to prevail over the mistaken entry made by the Tahsildar or by the Assistant commissioner who in ignorance of the legal provisions either cuts down the restrictive clause or issues certificate indicating period less than what rules provide". The cases cited by the learned Counsel for the petitioner are of no help as those cases do not deal with the Mysore Land Revenue Code where-under power is given to the Government to make rules. In the present case, transfer had been made within a period of 20 years from the date of grant. e. , within 16 years from the date of grant. So transaction was rightly held to be in violation of the law or rule relating to grant and Section 4 of the Act very clearly declares that any transfer made in violation of either of the terms of grant or in contravention of sub-section (2) of Section 4 notwithstanding anything in law to the contrary, shall be void. It is declarative of such transactions to be void which are made in contravention of terms of grant or terms of law. This has been the view expressed by the Division Bench of this Court also in the case of laxmamma v State of Karnataka and Others. The learned Counsel, for the petitioner further contended that here in this case transfer was by the grantee who is a Scheduled Caste person in favour of a person who is also a Scheduled Caste person. Therefore, it is not hit. The learned counsel made reference to Rule 29-A. Rule 29-A is of no help to the petitioner. Because earlier to that rule, there were certain order in the areas or territories such as of Madras State or like included in the Karnataka which provided for prohibitions like, that no transfer of granted land shall be made in favour of any person other than Scheduled Caste or Scheduled Tribe means that rule permitted transfer of land in favour of Scheduled Caste or Scheduled Tribe persons and prohibition was against transfer of granted land to non-Scheduled Caste person. That such a rule was deleted or declared to have ceased to operate in 1974. That such a rule was deleted or declared to have ceased to operate in 1974. e. , date on which Rule 29-A was enforced by amendment. But, here in this case, there has been no such rule prohibiting alienation in favour of non-Scheduled Caste or non-Scheduled Tribe person and permitting impliedly in favour of a person belonging to Scheduled Caste or Scheduled Tribe. The rule is very clear that no alienation of granted land shall be made in favour of any person during the period prescribed or mentioned in the rule. So the observations contained in paragraph 70 of Laxmamma's case, supra, is not of any help to the petitioner. Section 4 is very clear that any transfer made in breach of the terms of grant or in breach of rule or law or in breach of Section 4 (2) shall be void. In this view of the matter, the second contention also does not hold good and it is to be rejected and in view of above, petition is devoid of force and it is hereby dismissed with cost assessed at Rs. 750/ -.