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2005 DIGILAW 171 (KAR)

SEETHARAMACHARI v. DEPUTY COMMISSIONER, KOLAR

2005-03-03

D.V.SHYLENDRA KUMAR

body2005
D. V SHYLENDRA KUMAR, J. ( 1 ) THIS is a matter which has reached this Court for the second round, having been once remanded to the Deputy Commissioner the Appellate authority functioning under the provisions of the Kamataka Scheduled castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) act, 1978, in terms of the order passed by this Court on 7-1-1997 in W. P. No. 19717 of 1996. ( 2 ) WHILE in the earlier round, the writ petition was at the instance of the person claiming under the grantee who had complained against the order of the Appellate Authority in allowing the appeal and upsetting the order passed by the Assistant Commissioner who had directed resumption and restoration of land in favour of the applicant-legal heir of the original grantee, in the present round, the writ petition is by the person claiming under the purchaser. ( 3 ) THE subject-matter is an extent of 2. 20 acres of land in Survey No. 66 of Kanagal Village, Tekal Hobli, Malur Taluk which had been granted under the Depressed Class Dharkhast Proceedings Rules of mysore Land Revenue Code, 1888, in favour of one A. K. Thimmaraju in terms of a grant order of the year 1941-42 and subject to certain conditions. It was a part of this land which was sold by the grantee in terms of sale deed dated 8-10-1963 in favour of one Maligachari, father of the present petitioner. This transaction was made subject-matter for proceedings before the Assistant Commissioner by the grandson of the original grantee praying for action in terms of the provisions of Section 4 of the Act. ( 4 ) THE Assistant Commissioner found merit in the claim; that the sale transaction of the year 1963 was in violation of the terms of the grant, inasmuch as, the land which had been granted in favour of a person belonging to scheduled caste community and with a condition that it should not be alienated forever, had been sold in the year 1963 in violation of this condition; that the sale was required to be voided and accordingly passed consequential order in terms of his Order dated 6-9- 1994 (Copy at Annexure-A ). ( 5 ) THE purchaser being aggrieved by this order had preferred an appeal to the Deputy Commissioner and met with success. ( 5 ) THE purchaser being aggrieved by this order had preferred an appeal to the Deputy Commissioner and met with success. It appears the Deputy Commissioner had allowed the appeal for the reason that in terms of the conditions that could have been imposed on the grant as per statutory rules, the period of non-alienation is 15 years if the land is a free grant; that the land was granted in the year 1942-43 and the non-alienation period had expired by 5-10-1963, which is beyond 15 years and as such it was not in violation of the terms of the grant and the purchaser having enjoyed the land for a period of more than 12 years from the date of purchase by the time the Act came into force i. e. , on 1-1-1979, it should be held that the purchaser perfected his title and in this view of the matter, allowed the appeal by setting aside the order of the Assistant Commissioner. ( 6 ) THE aggrieved claimant who had filed the application under section 4 of the Act for restoration had preferred a writ petition before this Court as referred to above by filing W. P. No. 19717 of 1996. It is while allowing this writ petition that this Court observed that the appellate Authority even without making proper enquiry into the circumstances and as to the conditions that could have been imposed on a grant of this nature during the relevant time, had jumped to the conclusion that the period of non-alienation is 15 years and also that the purchaser had perfected title even while being in possession for a period of 12 years; that the order was not sustainable and as such set aside the order of the Deputy Commissioner and remanded the matter for proper enquiry and disposal of the appeal. ( 7 ) IT is pursuant to such remand order passed by this Court, the deputy Commissioner has re-examined the matter and has now dismissed the appeal on finding from the available records that the grant made in the year 1942-43 was governed by the Government notification No. AKDR 38/41-42 and in terms of Rule 43 (8) of this notification, land of this nature granted in favour of a person belonging to scheduled caste community should not have been alienated forever; that the transaction is necessarily one which is in violation of the terms of the grant; that though the original grant records were not available, the records with the revenue authorities in Form 5 having contained full details of the original grant, there was no impediment whatsoever in disposing of the appeal and accordingly dismissed the appeal. It is aggrieved by this order, the purchaser is before this Court in this round of writ petition. ( 8 ) SUBMISSION of Sri Prabhakar Rao, learned Counsel for the petitioner is that the Appellate Authority-Deputy Commissioner not at all held a proper enquiry; that even without examining the original records has proceeded to record certain findings adverse to the interest of the petitioner; that a finding necessary to attract the provisions of rule 43 (8) namely that the land had been one which was granted in terms of Rule 43 (5) of the Rules is conspicuously absent in the order; that if such a finding is absent, an inference that Rule 43 (8) governs the grant in itself is not sustainable; that in the absence of any finding as to the terms of the grant based on the relevant record, a condition that the land could not have been alienated forever cannot be automatically inferred; that the petitioner having enjoyed the land ever since the year 1963, it should be held that the petitioner had perfected title by prescription by long use and having asserted ownership all along adverse to the interest of anyone including the grantee or the government; that the petitioner's possession could not have been disturbed in the year 1994 for the first time in terms of order dated 6-9-1994 passed by the Assistant Commissioner; that the Deputy commissioner should have allowed the appeal of the petitioner and dismissed the application. ( 9 ) I have heard Sri Anjanamurthy, learned Government Pleader appearing for the respondents 1 and 2. ( 10 ) LEARNED Government Pleader points out that the grant is governed by the provisions of Rule 43 (8) of the Rules, in as much as the authorities have recorded a finding that the grant was in favour of a person belonging to scheduled caste community and a concessional grant; that the grant was in favour of a person belonging to scheduled caste community is a grant under Rule 43 (5) of the Rules and necessarily attracts the provisions or conditions specified in Rule 43 (8) of the Rules. ( 11 ) SO far as the argument relating to prescribing title by adverse possession is concerned, the grant being a conditional grant that the land should never be sold by the grantee, the ownership of the land continued to be with the grantee or the Government and at any rate the grantee was never the full owner. The Government retained sufficient interest to exercise right, control and modify the grant. So long as the interest of the Government subsists in law, the period for prescribing title by way of adverse possession as against the Government is 30 years as laid down by the Supreme Court in Sunkara Rajalakshmi v State of karnataka. Admittedly, the petitioner-purchaser having enjoyed the land for a period of about 16 years from the date of the purchase till the act came into force, the period of 30 years is not over for prescribing title by way of adverse possession. The date for determination of the period of adverse enjoyment is not the date when the Assistant Commissioner passes the order or when possession of the land is sought to be resumed by the Assistant Commissioner and for how long the purchaser had enjoyed the land upto this day for the purpose of computing the number of years of adverse possession, but it is the length of the period the purchaser had enjoyed the land as a owner till the date on which the Act came into force. The Act came into force on 1-1-1979, the interregnum is between the years 1963 and 1979 which invariably falls short of 30 years, the plea of adverse possession does not succeed. The Act came into force on 1-1-1979, the interregnum is between the years 1963 and 1979 which invariably falls short of 30 years, the plea of adverse possession does not succeed. ( 12 ) IN the circumstances, there is no need for interference with the orders for the reasons urged by the learned Counsel for the petitioner. ( 13 ) THOUGH Sri Prabhakar Rao, learned Counsel for the petitioner has vehemently urged that the Deputy Commissioner has disregarded the directions of this Court for holding a proper enquiry in the context of remand order and for the purpose of disposing the appeal before him, I do not see merit in this submission. The remand order by this Court in the earlier writ petition was passed because the Deputy Commissioner had recorded an erroneous finding that the number of years for non-alienation etc. , is 15 years whereas under the relevant rules, it is non-alienation for good and the other finding that the period within which adverse possession could be claimed was 12 years, both conclusions being erroneous and the direction for holding an enquiry was not in the context of the original records and terms of the grant itself, but due to such erroneous conclusions. ( 14 ) I am satisfied that the Deputy Commissioner has acted in consonance with the directions issued by this Court for the purpose of disposing of the appeal on its merits. ( 15 ) ACCORDINGLY, this swrit petition fails and is hereby dismissed. --- *** --- .