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2003 DIGILAW 527 (KAR)

H. M. ANUSUYAMMA v. ASST. COMMISSIONER

2003-07-04

body2003
( 1 ) THE petitioner is purchaser of land bearing Sy. No. 7/1 of Huchvvanahakku village in Hiriyur Taluk. The land was granted in favour of one A. K. Bheemajja on 2. 3. 1954 with a non-alienation clause for 10 years. However, the grantee sold the land on 31. 10. 1963 to one Kanil Rahuthar, who in turn sold to one Erappa in the year 1967. The said Erappa sold to one Murthy in 1985 who sold to one Deepachand Jain in 1989. The petitioner purchased from him on 12. 12. 1991. The legal representative of the original grantee approached the Asst. Commissioner for restoration of the land under the provisions of the Act. The Asst. Commissioner by the impugned order at Annexure-A dated 28. 4. 1999 held that the sale of land is null and void into view of breach of conditions of grant and there is contravention of the provisions of KPTCL Act. Consequently, he ordered restoration. The same has been confirmed by the Deputy Commissioner in Annexure-B dated 15. 3. 2000. Petitioner is seeking to quash the said orders. ( 2 ) IT is not in dispute that the land was granted in the year 1954 with a condition that it shall not be alienated for a period of 10 years. Despite such condition, the grantee sold the land in the year 1963, before the expiry of non-alienation period. Hence, the Assistant Commissioner was justified in holding that the sale is bad. Rightly the Deputy Commissioner affirmed the same. Hence, no interference is warranted. ( 3 ) MR. R. V. Jayaprakash, learned counsel for the petitioner contended that the Act came into force with effect from 1. 1. 1979 but the proceedings had been initiated by the Asst. Commissioner on 20. 11. 1987, as such there is inordinate delay in initiating the proceedings. Hence, he submits that the impugned orders are liable to be quashed on account of delay and laches. The contention cannot be accepted for the simple reason that there is no time limit prescribed to exercise the power under the provisions of the Act. Commissioner on 20. 11. 1987, as such there is inordinate delay in initiating the proceedings. Hence, he submits that the impugned orders are liable to be quashed on account of delay and laches. The contention cannot be accepted for the simple reason that there is no time limit prescribed to exercise the power under the provisions of the Act. Section 4 of the Act reads thus:- ( 4 ) PROHIBITION Of Transfer Of Granted Lands (1) Notwithstanding anything in any law, agreement, contract or instrument, any transfer of granted land made either before or after the commencement of this Act, in contravention of the terms of the grant of such land or the law providing for such grant, or subsection (2) shall be null and void and no right, title or interest in such land shall be conveyed or be deemed ever to have conveyed by such transfer. The commencement of the proviso with notwithstanding anything in any law is sufficient to reject the contention of the learned counsel. The further wordings shall be null and void and no right, title or interest in such land shall be conveyed or be deemed ever to have conveyed by such transfer makes it clear that the transaction would be null and void for ever. The word ever assumes significance and therefore the PTCL Act does not prescribe the limitation to exercise the power by the original Authority to annual the sale of the granted land, if there is contravention of condition of grant. Therefore the decision of this Court reported in ILR 1998 (4) KAR 4000, relied upon by the learned counsel for the petitioner has no application. 4. No right accrues to the petitioner as the initial sale itself was null and void for the reason that alienation of the granted land was made within non-alienation period and therefore the sale of the land attracts the provision of Section 4 (1) of PTCL Act and the title alleged to have been derived by him was defective. Since the initial purchase of land itself is bad, the subsequent sale transactions will not cure the said defect and the subsequent purchasers cannot claim better title. That apart, the authorities have got suo motu power to initiate proceedings at any time. In the absence of any limitation prescribed, there is no bar for initiating the proceedings belatedly. Since the initial purchase of land itself is bad, the subsequent sale transactions will not cure the said defect and the subsequent purchasers cannot claim better title. That apart, the authorities have got suo motu power to initiate proceedings at any time. In the absence of any limitation prescribed, there is no bar for initiating the proceedings belatedly. It is to be noticed that by the belated initiation of the proceedings, the petitioner had the benefit of enjoying the land until the culmination of the proceedings, though undisputedly the sale of the land is in contravention condition of grant of non alienation period, therefore under the provisions of Section 4 (1) PTCL Act is void and possession of the petitioner is by virtue of Transfer by way of sale as defined under Section 2 (e) of he Act which is also void in law. Therefore the contention urged by the learned counsel for the petitioner that the initiation of the proceedings at the instance of the legal heir of the grantee beyond reasonable period and consequently passing of the impugned orders are bad in law, hence this contention is liable to be rejected, accordingly rejected. ( 5 ) THE petitioner tries to take shelter by stating that he has perfected his title by adverse possession by contending that the grant of land in favour of the original grantee is absolute and therefore the grantee is the owner of the granted land, hence the period of limitation is 12 years from the date of first sale, which period was long back over. Both the authorities rejected the plea. It was not pleaded in the statement of objections filed before the Asst. Commissioner that the grant was absolute in favour of the grantee to claim the plea of adverse possession of 12 years. No evidence is adduced in this regard before the Assistant Commissioner. ( 6 ) IN the case of K. T. Huche Gowda vs. Deputy Commissioner (1993) 3 SCC 536) it is held that if this grant is absolute, the period of adverse possession is 12 years and if the grantee had merely a right of enjoyment of the land, permanent title remains with the Statement Government and in such an event the period of adverse possession would be 30 years. In the instant, the grant was subject to condition of non-alienation clause for a stipulated period. In the instant, the grant was subject to condition of non-alienation clause for a stipulated period. Hence, the grant was not absolute. This aspect of the matter had been considered in the case of R. Channadevarappa vs. State of Karnataka ( 1995 (6) SCC 309 ) and it has been held that the factum of adverse possession must be pleaded and proved by adducing evidence in that regard. In the case of Papaiah vs. State of Karnataka 91996 (10) SCC 5331) it is held that the plea of adverse possession does not arise against the State if the proceedings are initiated before the expiry of 30 years. The Apex Court in the case of D. N. Venkatarayappa vs. State of Karnataka (S. L. P (c) No. 1167/97, DD: 30. 1. 2002) has held that there is no inconsistency in the aforesaid two decisions. ( 7 ) THE law laid down by the Apex Court in the said cases are applicable to the fact situation and therefore the contention urged by the learned counsel for the petitioner that both the Authorities have failed to take into consideration of the plea of adverse possession and the findings recorded there in are vitiated in law, cannot be accepted. Hence, the plea of adverse possession must fail, as the same is devoid of merit. ( 8 ) THE counsel for the petitioner contended that enquiry was not conducted by the Assistant Commissioner as contemplated under Section 5 (1) (a) of the PTCL Act read with Rule 3 of the Rules and therefore the impugned orders are bad in law. The above said contention is wholly untenable and deserves rejection for the reason that the original records disclose conduct of enquiry giving opportunity to the petitioner, to file his statement of objection and to adduce his evidence in justification of his claim. ( 9 ) LASTLY, counsel for the petitioner contends that the Sub-Registrar should not have registered the sale deed in favour of the petitioner in view of the prohibition contained in Section 6 of the Act. According to the learned counsel for the petitioner, if there was refusal to register the document, he would not have purchased the land in question. According to the learned counsel for the petitioner, if there was refusal to register the document, he would not have purchased the land in question. It is to be mentioned that the petitioner ought to have verified the title deeds of his vendor and the predecessors in-title and obtained legal advice before making venture to purchase the granted land with a condition of non-alienation of the land within a particular period of 10 years which condition is in conformity with Rule 43 (G) (6) of the Rules. Having not done so, the petitioner has to blame himself. The Sub-Registrar had no occasion to verify that the land is a granted land as several sale transactions took place prior to the purchase by the petitioner. Normally, in the sale deeds the title derived from the previous owner would be mentioned. Details of original title will not be mentioned except in the first deed of sale. The petitioner having purchased the property from a defective titled vendor, he cannot now plead that he would not have purchased the land had the Sub-Registrar refused to register the sale deed. It is too belated to contend so. ( 10 ) SINCE the alienation of the land in question was in breach of the conditions of grant and in contravention of the provisions of the Act, the impugned orders do not call for interference by this Court. Writ Petition is devoid of merit and liable to be dismissed. Accordingly, the Writ Petition is dismissed. --- *** --- .