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2004 DIGILAW 577 (KAR)

SMT. SHABIRABHIYAMMA v. SRI. THIMMAIAH

2004-10-04

D.V.SHYLENDRA KUMAR

body2004
( 1 ) WRIT petitioner is a person who claims interest in 2 acres of land in survery No. 9 of Hondaravalli Village, mallipatna Hobli, Arkalgud Taluk, Hassan District, a land which had been granted infavour of one Sri. Thimmaiah in terms of a grant order dated 9-10-1963 evidenced by Saguvali Chit dated 27-12-1964 and measuring an extent of 3 acres and as a person belonging to the scheduled caste community. It is two acres of such land which the petitioner claims was the subject matter of an Agreement dated 1-8-1987 and under which it is claimed that the petitioner had been put in possession. The claimed that the petitioner had been put in possession. The claim of the petitioner is that the entire sale consideration of Rs. 4,500/- as indicated in this Agreement had been paid by the petitioner in favour of Respondent No. 1. ( 2 ) IN respect of these developments, proceedings had been taken by the petitioner by filing O. S. No. 10/1989 before the Court of Munsiff, Arakagud, praying for relief of specific performance of the Agreement dated1-8-1987 and consequential injunction and other reliefs. ( 3 ) IT is the further case of the petitioner that this suit came to be compromised between the parties in terms of a compromise decree dated 17-2-1989 and the Grantee the defendant in the suit who is respondent No. 1 in this petition, was directed to execute a regular sale deed in favor of the petitioner and that the petitioner was further entitled to get the khata changed to his name etc. , ( 4 ) IT is the further claim of the petitioner that the petitioner had instituted execution proceedings for enforcing the compromise decree and during the pendecy of the execution proceedings, the Respondent No. 1 came up with an application under section 5 of the Karnataka SCST [ptcl] Act, 1978 before the Assistant Commissioner praying for invalidating the transaction and for restoration of the land in his favour. ( 5 ) THE Assistant Commissioner in terms of his Order dated 5-8-1997 noticing that there was a civil decree in favour of the petitioner and the Court had also recorded a finding that at the time when the Agreement for sale had been entered into, the condition of 15 yeas had expired and as such was of the view that the land in question could not be restored in favour of the applicant and accordingly rejected the application. ( 6 ) THE respondent-Grantee being aggrieved by this order had carried the matter to the Deputy Commissioner by filing Appeal No. 15/1997-98 and met with success. The Deputy Commissioner in terms of his Order dated 25-9-2001 [copy at Annexure-A] allowed the appeal being not make any difference for the operation of the provisions of the Act; that the transaction originating with the sale agreement dated 1-8-1987 being subsequent to the provisions of the Act having come into force and not preceded by a prior permission by the Government, attracted the provisions of sub-section (2) of Section 4 of the Act and having regard to the overriding effect of the provisions of this Act as indicated insection11 of this Act, the transactions are voided and the land was required to be resumed and restored to the original grantee. ( 7 ) IT is this order of the deputy Commissioner with which the petitioner is aggrieved and has come up to this Court by filing the above writ petition. ( 8 ) SRI Jayaprakash Shetty, learned counsel for the petitioner has urged several contentions. The foremost contention of Mr. Shetty is that the deputy Commissioner even without examining the position as to whether the land was a granted land, whether it was, in fact in favour of a person belonging to the scheduled caste and as to the nature of the transaction particularly in the light of the decree of the Civil Court, has proceeded to allow the appeal; that the order passed by the Deputy Commissioner is not sustainable and is liable to be set aside. ( 9 ) IT is also the submission of Mr. ( 9 ) IT is also the submission of Mr. Jayaprakash Shetty that even when the claimant-applicant had not placed necessary and relevant material to show that the land in question was a granted land and was granted in favour of a person belonging to scheduled caste community, there was no occasion for the Deputy Commissioner to jump to the conclusion in this regard and allow the appeal. ( 10 ) SRI Anjanamurthy, learned Government Pleader appearing for respondent No. s2 and 3 submits that the order passed by the Deputy Commissioner is valid in law, in consonance with the provisions of the Act and no interference is called ( 11 ) SRI Ravi, learned Counsel for Respondent No. 1 submits that the Respondent No. 1 Applicant had, in fact, placed material before the Assistant Commissioner itself to show that he is a person belonging to scheduled caste community; that this was also verified by the deputy Commissioner on perusal of the record; such a finding is recorded by the Deputy Commissioner in his order; that it was also indicated that the land was granted in the year 1963 in terms of the Grant Order and saguvali chit dated 21-12-1964 is ample testimony for the grant; that these documents were before the Deputy Commissioner and as such the Deputy Commissioner has proceeded on such factual premise and to this extent no exception can be taken. ( 12 ) LEARNED Counsel for respondent No. 1 submits that the Agreement dated 1-8-1987 is also a transaction within the meaning of the word transfer as it occurs in section 3 (1) (e) of the Act; that if it is a transfer after the provisions of the Act has come into force and not preceded by prior permission by the Government, the very agreement is vitiated; that the subject matter before the Civil Court was this very agreement bur relief had been sought for based on such agreement even while the Court did not go into any of the disputed aspects, the decree has been passed only based on a purported compromise; that the act on the part of the respondent No. 1 Applicant transferring the land whether on his own volition or in terms of the decree of the Court makes no difference for the purpose of provisions of the a Act being attracted and the transfer being voided if it was in violation of the terms of the grant or in violation of the requirements of sub-section 2 to Section 4 of the Act. Learned counsel submits that in the instant case, as the transaction attracted the provisions of sub-section 2 of section 4, it inevitably got invalidated. It is also submission of Sri Ravi, learned Counsel for Respondent No. 1 that eh Deputy Commissioner has rightly referred to the provisions of Section 11 which has the effect of giving primacy to the provisions of this Act over any other provision and even a decree of a Court. ( 13 ) ON a perusal of the order passed by the Deputy Commissioner and after hearing learned for the parties, I am of the view that eh order passed by the deputy Commissioner in allowing the appeal and directing the Assistant Commissioner to restore the land in favour of the original grantee is an order justified in law and in face in consonance with the requirements of the provisions of the Act. ( 14 ) ON factual aspects such as the land being granted land and the grantee belonging to the scheduled caste community there cannot be any further dispute as there is a clear finding by the Deputy Commissioner based on the record. ( 14 ) ON factual aspects such as the land being granted land and the grantee belonging to the scheduled caste community there cannot be any further dispute as there is a clear finding by the Deputy Commissioner based on the record. Perhaps the only question that could have been agitated is the effect of the decree of the Civil Court under which the petitioner claims to have consolidated his position in so far as two acres of land in survey number referred to above in the granted land. As noticed above, the Agreement itself is one which is within the meaning of the word transfer occurring in Section 3 (1) (e) of the Act. Therefore, when the very agreement does not take off and gets invalidated, the decree in pursuance of such an agreement to direct the grantee to execute the sale deed does not operate to take things beyond the scope of any dispute or controversy. Section-11 makes it abundantly clear that notwithstanding anything inconsistent with any other law or any custom, usage or contract or even any decree or order of the Court, The provisions of this Act will have overriding effect. In view of the provisions of Section 11 notwithstanding the decree of the Civil Court, the provisions of sub-section (2) to Section 4 inevitably operate on the transaction as it is the admitted case of the petitioner that there was no prior permission for the transaction in question and in fact the Respondent No. 2 has till date not executed the sale deed in favour of the petitioner. The execution proceedings said to have been instituted and which was pending will lapse in view of the provisions of Section 11 read with sub-section (2) of Section 4 of the Act. At any rate, the execution proceedings will not be of any productive value to the petitioner-decree holder. ( 15 ) IN view of the legal position as discussed above, the view taken by the deputy Commissioner to invalidate the sale transaction to set aside the order of the Assistant Commissioner rejecting the application and allowing the application directing restoration of the land in favour of Respondent No. 1 are all in consonance and in accordance with the provisions of the Act. ( 16 ) NO occasion for this Court to upset such considered and valid order in exercise of writ jurisdiction under Article 227 of the Constitution of India. Writ Petition is dismissed. --- *** --- .