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2004 DIGILAW 667 (KAR)

MALLAMMA v. DEPUTY COMMISSIONER, HASSAN

2004-12-01

D.V.SHYLENDRA KUMAR

body2004
D. V SHYLENDRA KUMAR, J. ( 1 ) THIS is a peculiar case of legal heirs of a grantee coming to this Court praying for invalidating the order passed by the Deputy Commissioner functioning as an Appellate Authority under the provisions of the karnataka Scheduled Castes and Scheduled Tribes (Prohibition of transfer of Certain Lands) Act, 1978, who though found that a granted land had been sold in violation of the terms of the grant and as such the transfer should be invalidated and the lands resumed, nevertheless did not direct restoration of the land in favour of the petitioners/applicantslegal heirs of the original grantee and as such have sought for quashing of this portion of the order with commensurate directions to the Deputy Commissioner. ( 2 ) INSOFAR as the factual developments leading to the present writ petition are concerned this is not in dispute; that an extent of three acres of land in Sy. No. 14/2 of Kasaba Hobli, Sakleshpur Taluk, Hassan district, had been granted by way of lease for a period of five years in favour of one Komaraiah in terms of a grant of the year dated 8-1-1960. It is such a land that the said Komaraiah under whom the petitioners are claiming interest, appears to have sold the land in terms of a sale deed executed in the year 8-1-1964 in favour of one Achuta Rao S/o. Subbaraya Sharma. ( 3 ) NOTWITHSTANDING the execution of such a sale deed it appears the grantee continued to remain in possession and the recording of the assistant Commissioner before, whom the petitioners were applicants under the provisions of the Act, shows that even as on 29-11-1997, when the Assistant Commissioner passed orders on their application, petitioners/legal heirs of the original grantee had remained in possession and cultivation of the land in question. This is so observed in terms of the order dated 29-11-1997. Apart of it reads as under: Petitioners' having filed an application before the Assistant commissioner praying for invalidation of the sale transaction of the year 1964 and for resumption and restoration in their favour, the Assistant commissioner who had enquired into the matter passed the order as extracted above. This is so observed in terms of the order dated 29-11-1997. Apart of it reads as under: Petitioners' having filed an application before the Assistant commissioner praying for invalidation of the sale transaction of the year 1964 and for resumption and restoration in their favour, the Assistant commissioner who had enquired into the matter passed the order as extracted above. ( 4 ) THE Assistant Commissioner though found that the grantee himself did not have any right to effect sale of the land in favour of the said Achuta Rao, nevertheless held that so far as Achuta Rao is concerned, he should be held to be in possession from the year 1964 onwards and the application having been filed in the year 1997, it should be held that the transferee Achuta Rao was in uninterrupted possession for a period of 33 years and therefore had perfected title in his favour and accordingly dismissed the application. ( 5 ) PETITIONERS being aggrieved by this order had preferred appeal to the Deputy Commissioner. The Deputy Commissioner in terms of his order dated 30-4-2001 (copy at Annexure-C) though allowed the appeal in part to the extent that the purchase by the said Achuta Rao was in violation of the provisions of the grant and that the original grantee did not have any right to effect sale of the land and as such directed forfeiture of the land in favour of the State and for re-grant of the said land in accordance with the relevant rules. ( 6 ) IT is aggrieved by this order passed by the Deputy Commissioner, where under the Deputy Commissioner has directed the land to be resumed in favour of the State, but did not order restoration to the applicants/petitioners, the present writ petition is filed. ( 7 ) I have heard Smt. Sudha, learned Counsel for the petitioners and sri Anjana Murthy, learned High Court Government Pleader appearing for respondents 1 and 2. ( 8 ) THE purchaser has not contested the proceedings before this Court. ( 7 ) I have heard Smt. Sudha, learned Counsel for the petitioners and sri Anjana Murthy, learned High Court Government Pleader appearing for respondents 1 and 2. ( 8 ) THE purchaser has not contested the proceedings before this Court. ( 9 ) SUBMISSION of Smt. Sudha, learned Counsel for the petitioners is that the land in question, no doubt had been granted to the predecessor of the petitioners in the year 1960 for a period of five years in terms of a lease under Rule 43-H of the Rules under Mysore Land Revenue Code, 1888 as it prevailed then, but even as indicated in the very rule, the lease is only a step-in-aid of granting the land in favour of such person; that there is no dispute that the land had been granted; that after the initial lease period is over, such a land can be granted for good in favour of the lessee; that if such a land had been transferred by the grantee even before expire of such a lease period in view of operation of the provisions of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978, the transfer requires to be voided because it is a transfer in violation of the terms of the grant and when once the transfer is vitiated, the transfer is to be invalidated by a corresponding declaration by the Assistant commissioner, at the instance of persons claiming under the grantee, in view of the provisions of Section 5 of the Act, the land should be necessarily resumed to the State and granted/restored in favour of the applicants. ( 10 ) LEARNED Counsel for the petitioners also submits that the very object of the Act is not only for resumption of the land by invalidating the transfers effected in violation of the terms of the grant, but also to restore such lands in favour of the original grantee or legal heirs of the original grantee. Learned Counsel also submits that this is obvious on a reading of Section 5 of the Act, which is as under:"5. Learned Counsel also submits that this is obvious on a reading of Section 5 of the Act, which is as under:"5. Resumption and Restitution of granted lands.- (1) where, on application by any interested person or on information given in writing by any person or suo motu, and after such enquiry as he deems necessary, the Assistant Commissioner is satisfied that the transfer of any granted land is null and void under sub-section (1) of Section 4, he may: (a) by order take possession of such land after evicting all persons in possession thereof in such manner as may be prescribed: provided that no such order shall be made except after giving the person affected a reasonable opportunity of being heard; (b) restore such land to the original grantee or his legal heir. Where it is not reasonably practicable to restore the land to such grantee or legal heir, such land shall be deemed to have vested in the Government free from all encumbrances. The Government may grant such land to a person belonging to any of the Scheduled castes or Scheduled Tribes in accordance with the rules relating to grant of land. (1-A) After an enquiry referred to in sub-section (1) the Assistant commissioner may if he is satisfied that transfer of any granted land is not null and void pass an order accordingly. (2) Any order passed under sub-sections (1) and (1-A) shall be final and shall not be questioned in any Court of law and no injunction shall be granted by any Court in respect of any proceeding taken or about to be taken by the Assistant Commissioner in pursuance of any power conferred by or under the Act. (3) For the purposes of this section, where any granted land is in the possession of a person, other than the original grantee or his legal heir, it shall be presumed, until the contrary is proved, that such person has acquired the land by a transfer which is null and void under the provisions of sub-section (1) of Section 4". (3) For the purposes of this section, where any granted land is in the possession of a person, other than the original grantee or his legal heir, it shall be presumed, until the contrary is proved, that such person has acquired the land by a transfer which is null and void under the provisions of sub-section (1) of Section 4". Learned Counsel for the petitioners points out that one other circumstances that very clearly compels the authorities under the Act to restore the land in favour of the petitioners is that the petitioners have continued to remain and are in possession and cultivation of the land in question ever since the grant by way of lease; that though there was a transfer in the year 1964 by way of sale by the grantee, the grantee did not lose possession; that he remained in possession and cultivation and subsequent to the death of the original grantee his legal heirs remained in possession and cultivation; that the purpose of the original grant by way of lease of the land viz. , to enable the grantee to cultivate the land has been fully effectuated'; that the petitioners are bona fide cultivators even as on date and this aspect is clearly borne on record; that the findings given by the Assistant Commissioner which is as indicated in his order and accordingly the Deputy Commissioner should have directed restoration of the land in favour of the petitioners/applicants and in the absence of such a direction that portion of the order should be quashed and suitable directions should be issued by this Court in this regard. ( 11 ) SRI Anjana Murthy, learned Counsel for the respondents 1 and 2 submits that the land had been granted by way of a lease for a period of five years; that after the expiry of the lease period neither the grantee has right, title or interest nor the legal heirs; that it was a Government land and as such if such a land is resumed to the Government, petitioners cannot claim a right or have any grievance that it is not restored to them; that the Deputy Commissioner is right in resumption of land and directing re-grant of the land in accordance with the provisions of the Land Grant Rules etc. ( 12 ) ON an examination of the orders of the authorities, submissions made by the learned Counsels for the parties and the record available, there is no dispute on facts that the grant was by way of lease in the year 1960 for a period of five years, though there was a transfer before the expiry of the lease period, grantee remained in possession and cultivation and as pointed out by the learned Counsel for the petitioner in terms of Rule 43-H of the Code, lease granted under Rules 43-B and 43-A of the Code are in the first instance a lease for a period of five years and on the grantee satisfying the conditions shall be entitled to be registered as an occupant at the end of the lease period on payment of an upset price or such price as may be fixed and as in the instant case, the grant was in favour of a person belonging to scheduled caste, the purpose of Rule 43-H is only to register the occupant of the land at the end of the lease period. In the present case, though there was an intervening transfer in the year 1964, nevertheless the original grantee had remained in possession and cultivation of the land at the end of the lease period of five years and has continued to remain in possession and cultivation of the land till date. ( 13 ) THE purpose and object of original grant is more than effectuated. In the normal course the grantee could have been registered as an occupant, but that did not take place in the present case, because of various other intervening factors. The intervening facts viz. , the transfer of the land in the year 1964 having been got over now by the invalidation of the sale transaction under the provisions of the Act, what remains is that of effectuating the grant by registering the grantee or his legal heirs as occupants of the land. To say that as the grantee had violated the terms of the grant he is disentitled for restoration is beginning the question. To say that as the grantee had violated the terms of the grant he is disentitled for restoration is beginning the question. In fact in all cases of transfers the grantee does violate the terms of the grant and it is only because of such violation of the terms of the grant, the provisions of the Karnataka Scheduled castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) act, 1978, are attracted in terms of Section 5 of the Act and as rightly contended by the learned Counsel for the petitioners such land has to be restored in favour of the grantee or his legal heirs. Grant of lands belonging to the Government in terms of the Rules is in respect of grants in general. ( 14 ) IN the present case the grant had already taken place and to which the provisions of the Act are attracted. Provisions of Section 5 of the Act have to be given effect to by the authorities functioning under the Act. The Deputy Commissioner has rightly modified the order of the assistant Commissioner to the extent of holding that the transferee achuta Rao did not get any right under the sale of the year 1964, but has gone wrong in holding that as the original grantee had violated the terms of the grant, the land should be forfeited in favour of the state. The lease period having expired, the original grantee and now his legal heirs having continued in possession nothing come in the way of the legal heirs of the grantee from being conferred occupancy rights. This is also in consonance with the provisions and object of section 5 of the Act. ( 15 ) THE Act being a beneficial piece of welfare legislation meant for protecting the interests of the weaker sections of the society, particularly the interest of scheduled castes and scheduled tribes in whose favour the land had been granted and who by their ignorance or helpless situation would have transferred such lands, to invalidate such transfers resume it to the State and restore it to the legal heirs. ( 16 ) THAT is the primary duty of the authorities functioning under the act. ( 16 ) THAT is the primary duty of the authorities functioning under the act. In fact the provisions of Section 11 of the Act makes it abundantly clear that even assuming that there is something inconsistent in the provisions of this Act with the provisions of any other law for time being in force or any usage custom etc. , provisions of this Act shall have a overriding effect. That means provisions of this Act is to be fully given effect to. ( 17 ) IN the result, this writ petition is allowed. A writ of certiorari. is issued to quash only that portion of the order passed by the Deputy commissioner directing forfeiture of the land in favour of the State and rejecting the application of the petitioners for the purpose of restoration of the land in their favour. Petitioners having applied for restoration in their favour it is very obvious that they have not only applied and sought for, but have evinced their interest in seeking occupancy rights also. ( 18 ) THEREFORE, a writ of mandamus is issued to the Deputy commissioner directing him to take action for restoration of the land in favour of the petitioners in accordance with law. ( 19 ) AS it is contended by the learned Counsel for the petitioners and also recorded by the Assistant Commissioner that the petitioners have remained in possession of the land to an extent of three acres in Sy. No. 14/2 of Kasaba Hobli, Sakleshpur Taluk, Hassan District, their possession need not be disturbed, but the Deputy Commissioner to ensure that the land is re-granted in favour of the petitioners so that their occupancy is regularised and protected. ( 20 ) RULE issued and made absolute. --- *** --- .