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2004 DIGILAW 212 (KAR)

KHALID SALEEM v. MANJAIAH

2004-03-17

D.V.SHYLENDRA KUMAR

body2004
., J. ( 1 ) THIS writ petition is by a person who had purchased a part of a land granted in favour of a person belonging to depressed class as per a grant Orderdated 15-11-1951. The petitioner had purchased part of this land namely four acres out cf the five acres that had been granted as per a sale deed executed by the grantee on 27-7-1971. The effect of the provisions of the land revenue code, the conditions of grant and the resultant effect on the sale in the light of the provisions of the Karnataka scheduled castes and scheduled tribes (prohibition of transfer of certain lands) act, 1978 ('the act' for short) was the subject-matter of proceedings before the assistant commissioner and the deputy commissioner, the authorities functioning under the act for the purpose of identifying of such lands which had been sold in violation of the terms of the grant which attracted the provisions of this act and for resumption of the land in favour of the state and further restitution of such land in favour of the grantee or the legal heir of the original grantee. ( 2 ) THE third respondent who is the son of the original grantee had filed an application before the assistant commissioner on the premise that the sale effected on 27-7-1971 by his father in favour of the petitioner was voided in terms of the provisions of Secrion 5 of the act, since the petitioner was a minor represented by his father and therefore prayed for setting aside the transaction and for restitution of the land. ( 3 ) AN enquiry was held by the assistant commissioner in this regard. The purchaser having not contested the proceedings and having remained ex parte, the assistant commissioner, on finding that the land in question was granted to a person as per the Orderno. M. 4 dr: 37 : 51-52, dated 5-9-1951 of the deputy commissioner and to a person belonging to the depressed class and subject to the terms and conditions of the grant in respect of persons belonging to depressed class and having been so granted on fixing a nominal price of Rs. M. 4 dr: 37 : 51-52, dated 5-9-1951 of the deputy commissioner and to a person belonging to the depressed class and subject to the terms and conditions of the grant in respect of persons belonging to depressed class and having been so granted on fixing a nominal price of Rs. 10/- per acre under the relevant Rule s at that time which operated and governed such grants namely, Rule 43 (8) of the mysore land grant Rule s, having imposed a condition of permanent non-alienation in respect of such grants, while held that the sale transaction is voided, that it is in violation of the 'conditions of the grant and as such accepted the application and directed restoration of the land to the legal representative of the original grantee. The appeal preferred by the purchaser as against this Ordercame to be dismissed by the deputy commissioner as per his Orderdated 29-4-2003 on finding that the petitioner had not evinced much interest even in the appeal. ( 4 ) THE petitioner having carried the matter further to this court by filing W. P. No. 37230 of 2003, the same having been allowed by this court as per Orderdated 14-10-2003 and the matter having been remanded to the deputy commissioner for according an opportunity to the appellant before him and pass orders afresh, the deputy commissioner, having notified the parties concerned and having heard the matter, considered the written submissions as well as the oral submissiqns made by the learned counsels for parties, has dismissed the appeal yet again by the impugned Orderdated 6-1-2004 which is again in challenge before this court by filing this writ petition. ( 5 ) SEVERAL contentions have been urged on behalf of the petitioner. Though the matter had been listed for orders today, on an application moved on behalf of the petitioner notice having been issued to the respondents and the learned counsel for the contesting respondents as well as the learned government pleader appearing for the respondents having been heard, the matter is disposed of by this order. ( 6 ) SRI ashok haranahalli, learned counsel for petitioner has put forth a two-fold contention. ( 6 ) SRI ashok haranahalli, learned counsel for petitioner has put forth a two-fold contention. Learned counsel firstly urges that the land in question had been mortgaged by the original grantee in favour of aldur large size primary agricultural credit co-operative society, aldur, and as the grantee was unable to discharge the loan and redeem the property which had been offered as security for repayment of the loan and sale transaction being for the purpose of discharging such a loan, the transaction should not be voided. The submission of the learned counsel is that the very Rule namely, Rule 43 (8) of the mysore land grant Rule s enables a granted land in favour of a depressed class person being accepted as security for any loan advanced by a co-operative society and for the purpose of grantee improving the land. In the instant case, the land that was taken by the original grantee being for such a purpose, offering the land by way of security was a permitted action and if any further steps are taken mainly for the purpose of discharge of that loan even by selling, it should be construed as a transaction permitted under this very Rule and as per law and not in violation of the condition of grant which alone can attract the provisions of the act. ( 7 ) THE other argument put forth by Sri ashok haranahalli is that the authorities have not given a clear or categorical finding that the land in question that had been granted was in favour of a person belonging to depressed class and at half the upset price as contemplated under Rule 43 (5) which situation alone attracts the further consequence of Rule 43 (8) of the Rule s particularly the condition of permanent non- alienation and even in the absence of a clear finding which could attract the operation of Rule 43 (5) of the Rule s, the authorities could not have proceeded to invalidate the sale transactions. ( 8 ) THE submission of learned counsel is that there could be grants independent of Rule 43 (5) also and in the absence of a clear finding indicating the attraction and operation of Rule 43 (5) of the Rule s, the conclusion arrived at by the authorities under the act is not sustainable; that the same deserves to be set aside and the matter has to be remanded to the authorities for a clear finding as to whether the facts and circumstances justify application of Rule 43 (5) as also Rule 43 (8) of the Rule s. ( 9 ) SRI anjanamurthy, learned high court government pleader appearing for respondents 2 and 3, while drawing attention to the relevant provisions of Rule 43 (5) and Rule 43 (8) of the Rule s which was in operation during the period between 1938 and 1953 and the grant being of the year 1951, the operation of these Rule s in respect of a grant cannot be disputed; that as per the provisions of Rule 43 (8), a grant of this nature carries with it a condition that it should not be alienated and therefore the authorities are right in holding that the sale was in violation of the terms of the grant and the action taken is justified and does not call for interference at the hands of this court. ( 10 ) SRI sathyanarayana, learned counsel for first respondent submits that the transaction in question namely sale of land by the original grantee in favour of the petitioner is a transaction on the fact of it attracting the provisions of the act as a sale of this nature is not saved at all under the relevant Rule s. Learned counsel submits that the provisions not having expressly saved, a transaction of this nature and at the best having enabled the original grantee to raise a loan by offering the granted land as a security in favour of a co-operative credit society and the transaction in the present case going beyond the relaxation, it necessarily attracts the provisions of the act being in contravention of the conditions of the grant. ( 11 ) LEARNED counsel for the first respondent has also drawn my attention to the Orderpassed by the deputy commissioner who, on perusal of the record and on an examination of the Orderpassed by the deputy commissioner, has given a categorical finding that the land in question had been granted in favour of the original grantee at a price of Rs. 10/- per acre; that the price of Rs. 10/- per acre does not constitute the market value of the property either at the time of the grant or later; that it is not even the upset price of the property that the land has been granted in favour of the grantee and that it is at a price much lower, in which event it is much less than the upset price. The submission of the learned high court government pleader based on this finding is that when once grant is at a price lower than the upset price, it necessarily is a grant at a reduced upset price in which event the provisions of Rule 43 (8) are inevitably attracted and the non-alienation clause operates. ( 12 ) AFTER hearing the learned counsels for the parties and after perusing the records, it is clear that the transaction is one wherein a grantee who belonged to depressed class has sold a part of the granted land as per the sale transaction dated 27-7-1971. The further factual position as per the record is also that the authorities have collected the price at Rs. 10/- per acre in respect of the land from the original grantee. Though learned counsel for the petitioner would submit that there is no clear or categorical finding by the authorities which can lead to the conclusion that it is a case where the provisions of Rule 43 (5) operated which alone in turn can attract the provisions of Rule 43 (8) of the Rule s, I am of the view that even in the absence of such a categorical finding the position is no different in the present case. The factual finding given by the authorities itself indicates that it is a case where the provisions of Rule 43 (5) of the Rule s are attracted. The factual finding given by the authorities itself indicates that it is a case where the provisions of Rule 43 (5) of the Rule s are attracted. Even assuming for argument's sake that it is not so, the further factual finding which cannot be disputed is that the land came to be granted by collecting a price of Rs. 10/- per acre from the grantee. The record does not indicate that the upset price had been determined in accordance with the provisions of the code, there is no indication either to conclude what was the precise upset price. There is also no indication of any finding by the authorities that it is granted at the market value. The land granted being in favour of a person belonging to depressed class, it can be safely inferred that it is a concessional grant and even if it is not a case which clearly attracts the provisions of Rule 43 (5) of the Rule s, it is definitely a case which indicates that the price at which it has been granted is much lower than the 50% of the reduced upset price, in which case the provisions of Rule 43 (5) applies. At any rate, this is a case where the land has been granted at a price lower than the upset price, in which event the provisions of Rule 43 (8) are necessarily attracted and operates. If so, the condition of permanent non-alienation also applies and the sale transaction is automatically void being in violation of this condition. ( 13 ) INSOFAR as the argument that the transaction in question should be treated on par with a transaction resulting as a consequence of a bank or credit society enforcing its right in respect of a secured loan, the argument cannot be accepted for two reasons - one is that the inference with a sale transaction if it had been by the credit co-operative society in whose favour the land had been mortgaged by the original grantee if had been sold by the society for realisation of the loan amount and by enforcing security, is a sale transaction saved from being in violation of the terms of the grant, is not one that necessarily follows. A transaction in the nature of raising a loan by offering it as security, cannot be construed on par with a transaction in the nature of a sale effected by the bank for enforcement of the security. But in the instant case, the position is not even that. It is a clear sale by the grantee himself though it is mentioned that the sale was for the purpose of discharge of the loan. The argument of the learned counsel for the petitioner is that the transaction of this nature also should be treated on par with a transaction if it had been by the bank itself, cannot be accepted for yet another reason namely that whatever is saved under the enabling provisions of Rule 43 (8) should be strictly construed and it cannot be given an extended meaning or applicability which can have the effect of defeating the purpose of the original grant and also the purpose of the provisions of the Karnataka act as this provision is interpreted in the context of the applicability of the provisions of the act. Any interpretation that runs counter to the object and purpose of retaining or resumption of such lands in favour of the original grantee should be eschewed. ( 14 ) IN any view of the matter, I am of the opinion that the orders passed by the authorities below does not call for interference at the hands of this court in exercise of jurisdiction under Article 227 of the constitution of India. The ultimate effect of the impugned orders being to subserve and to achieve the object of the act and there being no illegality in the act committed by the authorities in the course of passing these orders, no interference is called for. ( 15 ) THOUGH learned counsel for the petitioner has urged for remanding the matter to the authority for recording a clear finding on the aspect of the attraction of Rule 43 (5), as I have indicated above, the position May not make much difference. There is no need for remanding the matter to the authorities at all. ( 16 ) IN the circumstances, this writ petition is rejected. The authorities to take further necessary steps in accordance with law. --- *** --- .