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2003 DIGILAW 723 (KAR)

MUNIVENKATAPPA v. DEPUTY COMMISSIONER

2003-08-27

K.BHAKTHAVATSALA, KUMAR RAJARATNAM

body2003
K. BHAKTHAVATSALA, J. ( 1 ) IN this intra-Court appeal filed under Section 4 of the Karnataka High Court Act, 1961, the writ petitioner challenges the order of the learned Single Judge passed in W. P. No. 17822 of 2000, dated 13-12-2000. ( 2 ) THE respondents 1 and 2 are represented by Sri Basavarajaiah, learned Government Pleader. Respondent 3 is represented by Sri J. G. Chandra Mohan. ( 3 ) FOR the purpose of convenience, the appellant and the respondents herein are referred to as 'the petitioner', 'the Appellate Authority', 'the Assistant Commissioner' and 'the grantee's daughter-in-law', respectively. ( 4 ) THE brief facts of the case leading to the filing of the appeal may be stated as under. The land in question is bearing Sy. No. 1 measuring 3 acres of Vishwanathapura (hereinafter referred to as 'the disputed land' ). The disputed land was granted in favour of'one Raman Bovi (in short 'the grantee') by the grant bearing No. LND 147/59-60, dated 30-12-1960 free of cost on a condition of non-alienation for 15 years. But, the grantee alienated the disputed land to the petitioner by way of a registered document bearing No. 4141/74-75 on 7-12-1974. The Tahsildar of Chintamani recommended to declare the sale of the disputed land as void and resume the same to the original grantee. On the basis of the report of the Tahsildar, the Assistant commissioner, Chickaballapur, registered a case in No. PTCL (Ch) 10/88-89. After holding an enquiry, the Assistant Commissioner, by his order dated 21-9-1994 held that since the original grantee alienated the disputed land within 15 years from the date of grant, the alienation comes within the scope of the Scheduled Castes and Scheduled Tribes (Prohibition of Certain Lands) act, 1978 (in short, 'the Act'), and therefore declared the alienation by the original grantee in favour of the petitioner as void and directed eviction of the alienee/petitioner. The petitioner, feeling aggrieved of the order of the Assistant Commissioner, preferred an appeal before the deputy Commissioner, Kolar in case No. RA/sc-ST/29/1994-95. The Appellate Authority viz. , the Deputy Commissioner, on the basis of the material on record, came to the conclusion that the disputed land has been alienated within 15 years from the date of grant contrary to the Act and there was no good ground to interfere with the order of the Assistant Commissioner. The Appellate Authority viz. , the Deputy Commissioner, on the basis of the material on record, came to the conclusion that the disputed land has been alienated within 15 years from the date of grant contrary to the Act and there was no good ground to interfere with the order of the Assistant Commissioner. Hence, he dismissed the appeal confirming the order of the Assistant Commissioner. Feeling aggrieved of the order of the Appellateuthority, the petitioner preferred a writ petition before the learned single Judge in W. P. No. 17822 of 2000. The learned Single Judge of this Court, after hearing arguments of the learned Counsels for the parties, held that the disputed land was granted to a person belonging to Bovi community and it comes within the permissible category of SC and since the disputed land was alienated within 15 years of grant in violation of Grant Rules, the provisions of the Act are attracted, and therefore dismissed the writ petition as devoid of merits. This is impugned in this writ appeal. ( 5 ) HEARD the learned Counsels appearing for the parties. ( 6 ) THE learned Counsel Sri Albal, appearing for the appellant-petitioner urged the following grounds. ( i) that as on 30-12-1960 viz. , the date on which grant was made, the Bovi community was not included in the category of the Scheduled Caste and therefore the land in question was not "granted land", and therefore the Assistant Commissioner had no jurisdiction to initiate any action for resumption of the land under the Act; (ii) that the respondent 3 has not proved that she is the daughter-in-law of the original grantee. ( 7 ) IN support of the contention of the learned Counsel for the appellant, he cited an unreported decision rendered by the Division Bench of this Court in W. A. No. 2807 of 1991, DD: 7-11-1995. In that case, B. Basavalingappa v. D. Munichinnappa and Ors. , AIR1965 SC 1269 , [1965 ]1 SCR316 was not cited. On the other hand, the learned Government Pleader, appearing for the respondents 1 and 2, argued in support of the impugned order. In that case, B. Basavalingappa v. D. Munichinnappa and Ors. , AIR1965 SC 1269 , [1965 ]1 SCR316 was not cited. On the other hand, the learned Government Pleader, appearing for the respondents 1 and 2, argued in support of the impugned order. ( 8 ) THE learned Counsel Sri Chandramohan, appearing for respondent 3 submitted that as per the scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976, Bovi community (vide s. No. 23; Part VII Karnataka, to the First Schedule) is a Scheduled Caste in relation to the State of Karnataka and as per Section 3 of the above said Amendment Act, 1976, all things done, and all steps taken, before the commencement of this Act by the census authority for the determination of population of Scheduled Castes and Scheduled Tribes, or by the Commission for the purpose of re-adjustment of constituencies shall, insofar as they are in conformity with the provisions of this Act, be deemed to have been done or taken under these provisions as if such provisions were in force at the time such things were done or such steps were taken. He also cited the decision in B. Basavalingappa's case, supra. ( 9 ) AFTER the learned Counsel appearing for the respondent 3 drawn our attention in respect of the provisions of the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976 and the decision of the Apex Court in the above said B. Basavalingappa's case, the learned Counsel for the petitioner has conceded that the grantee, who belongs to Bovi community was a scheduled Caste and the provisions of the Act are applicable. Thus, the learned Counsel appearing for the appellant virtually has given up the first contention. However, it is pertinent to mention that the disputed land was granted by the Government in favour of the grantee by order dated 30-12-1960. The above said B. Basavalingappa's case went to Supreme Court with regard to election to the Bangalore South (Scheduled Caste) Constituency in February 1962. The candidate, who won the election, belonged to Voddar caste and not Bov. The Supreme Court, in the above said B. Basavalingappa's case, confirmed the finding of the High Court holding that the respondent 1-Munichinappa (the candidate, who won the election) though Voddar by caste belongs to the Scheduled Caste of Bovi mentioned in the Constitution (Scheduled Castes) Order, 1950. The candidate, who won the election, belonged to Voddar caste and not Bov. The Supreme Court, in the above said B. Basavalingappa's case, confirmed the finding of the High Court holding that the respondent 1-Munichinappa (the candidate, who won the election) though Voddar by caste belongs to the Scheduled Caste of Bovi mentioned in the Constitution (Scheduled Castes) Order, 1950. The Apex Court dismissed the appeal preferred by B. Basavalingappa by order dated 23-9-1964. The grant in the instant case was made in 1960. The election challenged to the bangalore South (Scheduled Caste) was in regard to February 1962. The Supreme Court, in B. Basavalingappa's case, held that the winning candidate, who is Voddar by caste, he belongs to the Scheduled Caste of Bovi community. Hence, the grant in question, which was made in 1960 in favour of the grantee, who is admittedly Bovi by community, cannot be said that the grantee was not a Scheduled Caste as on the date of grant. Therefore, it is a fit case to hold that the disputed land in question comes within the scope of "granted land" and the Assistant commissioner had jurisdiction to invoke the provisions of the Act for resumption of the granted land. Hence, the first contention of the learned Counsel for the appellant holds no water. ( 10 ) WITH regard to the second contention that the respondent 3 is not the daughter-in-law of the original grantee is concerned, though the contention was taken by the petitioner and opportunity was given to him by the respondents 1 and 2, he has not placed a scintilla of material on record to establish that the 3rd respondent-Eramma is not the daughter-in-law of the original grantee. It is not out of place to mention that according to Lord Denning, "the one who pleads must prove". There was no obligation or duty on the respondent 3 to prove that she was the daughter-in-law of the original grantee when the petitioner has not placed an iota of material on record otherwise. Under such circumstances, it cannot be said that the respondents 1 and 2 have committed any error in passing the impugned orders. We see no good ground to interfere with the order of the learned Single Judge. ( 11 ) HENCE, we pass the following order: the writ appeal fails and the same is hereby dismissed. No costs.