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2004 DIGILAW 664 (KAR)

PRAKASHV v. STATE OF KARNATAKA

2004-11-30

D.V.SHYLENDRA KUMAR

body2004
D. V SHYLENDRA KUMAR, J. ( 1 ) THESE two writ petitions are by legal heirs of the person in whose favour 2 acres of land had been granted in Survey No. 7 of Herohalli village, Yeshwanthpur Hobli, Bangalore North Taluk, in terms of a grant Order dated 7-6-1941 granted under the depressed class darkhast proceedings and free of cost in favour of one Junjappa, son of Galappa. The saguvali chit in respect of this land had been issued on 20-10-1943. ( 2 ) IT is the case of the petitioner in both the petitions that the said land had been sold by Junjappa and his son in terms of two sale deeds dated 20-12-1972, one acre each in favour of one Lakshminarayana and shivanna. The said Lakshminarayana in turn had sold the land in favour of Chikka Hanumakka. It is such land which had been purchased by respondent 4 in W. P. No. 21473 of 2004 in terms of sale deed dated 20-6-1974 executed by Lakshminarayana. The petitioners had sought for invalidation of these sale transactions of the year 1972 both in favour of lakshminarayana and Shivanna by filing application under the provisions of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands] Act, 1978. The application came to be allowed in terms of the Order dated 24-9-2002 passed by the assistant Commissioner inter alia holding that the grant of the year 1941 followed by the issue of saguvali chit was a free grant in favour of a scheduled caste person belonging to Adi Karnataka community; that in terms of the relevant rules governing such grant i. e. , Rule 43 (8) of the rules under Mysore Land Revenue Code, 1888, as notified in the government Notification in No. LR 89-38-10, dated 31-12-1938; a land of this nature was subject to the condition that it should not be alienated for all times to come; that the grantee and his son had sold such land an extent of one acre each in favour of the said Lakshminarayana and shivanna; that the sale transaction are now voided in terms of the provisions of the Act as the sale was in violation of terms of the grant; that such land is required to be resumed to the State and restored to the grantee or his legal heirs. ( 3 ) AGGRIEVED by this order passed by the Assistant Commissioner, the persons claiming under Lakshminarayana namely, Chikka Hanumakka as also Shivanna figuring as respondent 4 in W. P. No. 21473 of 2004 and w. P. No. 21475 of 2004 respectively preferred two separate appeals before the Deputy Commissioner. The Deputy Commissioner who had occasion to look into the merits of the matter, though found that the findings recorded by the Assistant Commissioner was supported by sufficient material which was before the Assistant Commissioner, nevertheless allowed both the appeals and set aside the order passed by the Assistant Commissioner holding that the land granted in the year 1941 having been sold in the year 1972 i. e. , after a period of 27 years from the date of the grant, it cannot be said that the transfer is in violation of the terms of the grant, as the period of non-alienation was only 15 years from the date of the grant as contended by the learned counsel for the appellants. ( 4 ) AGGRIEVED by these appellate orders of the Deputy Commissioner, the original applicants before the Assistant Commissioner have come up with these two writ petitions. ( 5 ) I have heard Sri Siddagangaiah, learned Counsel for the petitioner and Sri Varadarajan, learned Counsel for the respondent 4-purchaser in each writ petition as also Sri M. G. Anjanamurthy, learned Government pleader for the Authorities under the Act. I have also perused the records of the Assistant Commissioner placed before the Court by the learned Government Pleader. ( 6 ) SUBMISSION of Sri Siddagangaiah, learned Counsel for the petitioner is that the Deputy Commissioner has gone wrong in inventing the condition of 15 years as the period of non-alienation; that the grant itself was one with permanent non-alienation condition; that the relevant rule also says the same thing, namely, Rule 43 (8) of the Rules under Mysore Land Revenue Code, 1888, which is attracted in the case of grant in favour of depressed class person; that such a land cannot be transferred by the grantee; that the Assistant Commissioner was correct in invalidating the sale transactions, directing resumption of land in favour of the State and the Deputy Commissioner instead of dismissing the appeals, wrongly allowed the appeals and therefore, interference is called for by this Court in writ jurisdiction under Article 227 of the constitution of India. ( 7 ) SRI Anjanamurthy, learned Government Pleader, appearing for respondents 1 to 3 draws attention of the Court to Rule 43 (8) and submits that this is the rule which governs the grants in the year 1941 and as per the rule, the condition is that the grantee should not alienate the granted land. ( 8 ) SRI Varadarajan, learned Counsel for the contesting respondents in both the petitions, submits that the Assistant Commissioner could not have given or recorded a finding that the land in question had been granted in favour of person belonging to depressed class or that it carried the condition of permanent non-alienation; that the Assistant commissioner did not have the benefit of original records before him; that even the order passed by the Assistant Commissioner indicates that when the Assistant Commissioner had called for the records, the tahsildar concerned had reported that the original records were not available and as such the order passed by the Assistant Commissioner is more on surmises rather than based on any material on record. ( 9 ) THE additional contention raised on behalf of respondent 4 in W. P. No. 21473 of 2004 by Sri Varadarajan is that the respondent 4 in this writ petition who was the appellant before the Deputy Commissioner had purchased one acre of land from Lakshminarayana in terms of sale deed dated 20-6-1974; that the Assistant Commissioner has not noticed the sale transactions; that no notice had been issued to this respondent before the Assistant Commissioner; that this respondent on coming to know of the proceedings subsequently had filed an appeal by seeking leave before the Deputy Commissioner and therefore in the absence of an order passed by the Assistant Commissioner invalidating the sale transaction effected in favour of the respondent 4 in this writ petition, her interest cannot be affected. ( 10 ) IT is no doubt true that the original records were not forthcoming from the office of the Tahsildar. The Assistant Commissioner who had waited for sufficient time for the arrival of the records found no point in indefinitely keeping the proceedings pending before him and has proceeded to consider the available material before him and has passed orders. The Assistant Commissioner who had waited for sufficient time for the arrival of the records found no point in indefinitely keeping the proceedings pending before him and has proceeded to consider the available material before him and has passed orders. The Assistant Commissioner had an occasion to examine the saguvali issue register extract; that it indicates grant was in terms of the order dated 7-6-1941 in favour of the original grantee namely, junjappa; that saguvali chit had been issued on 20-10-1943 and saguvali chit also recited that it was under dharkhast proceedings and subject to the conditions in terms of DD: 20/40-41; that this indicates that it was a grant in favour of person belonging to depressed class; that the original grantee belonged to Adi Karnataka community and as such material before him was sufficient to come to the conclusion that the transfers of the year 1972 were in violation of the condition which is statutonly incorporated on such grants in terms of Rule 43 (8) of the Rules under mysore Land Revenue Code, 1888 and as such it was necessary for him to invalidate the sale transaction. ( 11 ) I am of the view that there was sufficient reliable material before the Assistant Commissioner based on which the Assistant commissioner has passed the order. The order is also on applying the relevant rules governing such grants during that relevant time. ( 12 ) INSOFAR as the contention that the sale transaction of the year 1974 in favour of the respondent 4 in W. P. No. 21473 of 2004 has not been set aside is concerned, I am of the view that the question is as to whether the order can bind the respondent 4. ( 13 ) IT is not in dispute that the respondent 4 is a person claiming under the said Lakshminarayana in whose favour the land had been sold in terms of the sale transaction dated 20-12-1972. If that transaction is held to be invalid, a person claiming under such a person automatically loses any right, title which he or she claims to emanate from such person. This aspect apart, the respondent 4 herself agitated the matter before the Deputy Commissioner and was aware of the proceedings from that stage. Ultimately, the question is only one of sufficient opportunity for defending the proceeding. This aspect apart, the respondent 4 herself agitated the matter before the Deputy Commissioner and was aware of the proceedings from that stage. Ultimately, the question is only one of sufficient opportunity for defending the proceeding. If anything positive in favour of such a person could be pointed out before the Authorities. Qualitatively, there is no distinction in respect of two sale transactions effected by Junjappa and his son in favour of Lakshminarayana and shivanna. It cannot be that in respect of one sale transaction it is affected and in respect of the other sale transaction it is not so affected. The result is the same when once the provisions of the Act are applied to test the correctness or otherwise of such sale transaction. At any rate, a subsequent purchaser like the respondent 4 in W. P. No. 21473 of 2004 cannot qualitatively add anything for bringing about a different result in respect of the sale transactions dated 20-12-1972. The Assistant commissioner, having held that sale transactions both in favour of lakshminarayana and Shivanna of the year 1972 are invalid, it is inevitable that the respondent 4 in W. P. No. 21473 of 2004 loses any right if at all she could have acquired under the subsequent sale transaction of the year 1974 under the sale deed executed by lakshminarayana in her favour. At any rate, assuming that there can be some technical flaw in a matter of this nature, it does not bring about a different result in the final analysis. Issue of notice to a person like the respondent 4 will become more a formality at this stage when the result is the same and as has been achieved by the order of the Assistant commissioner. If that order is to be sustained, it is inevitable that the respondent 4 has to lose. The order passed by the Assistant commissioner is valid, sustainable in law which could not have been interfered by the Deputy Commissioner in the appeals preferred by the respondent 4 before him. ( 14 ) ACCORDINGLY, these writ petitions are allowed. The orders passed by the Deputy Commissioner in Case No. SC. ST. (A)25 of 2002-03, dated 26-4-2004 in W. P. No. 21473 of 2004 and in Case No. SC. ST. (A) 26 of 2002-03, dated 26-4-2004 in W. P. No. 21475 of 2004 are hereby quashed by issue of a writ of certiorari. The orders passed by the Deputy Commissioner in Case No. SC. ST. (A)25 of 2002-03, dated 26-4-2004 in W. P. No. 21473 of 2004 and in Case No. SC. ST. (A) 26 of 2002-03, dated 26-4-2004 in W. P. No. 21475 of 2004 are hereby quashed by issue of a writ of certiorari. The order passed by the Assistant commissioner in Proceeding No. KSC. ST 11 of 2000-01, dated 24-9-2002 in both the petitions are restored. ( 15 ) RULE issued and made absolute. Parties to bear their own costs. --- *** --- .