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2005 DIGILAW 520 (KAR)

KHALID SALEEM v. MANJAIAH

2005-08-11

H.N.NAGAMOHAN DAS, R.GURURAJAN

body2005
H. N. NAGAMOHAN DAS, J. ,, J. ( 1 ) IN this writ appeal the appellant has called in question the order of the learned Single Judge dated 17-3-2004 in W. P. No. 5591 of 2004 dismissing the writ petition (Khalid Saleem v Manjaiah ). ( 2 ) THE subject-matter in this appeal is four acres of land in Survey no. 653/p, Aldur Village, Chikmagalur District. This land was granted in favour of the father of the 1st respondent by name Boothaiah under a grant order dated 5-9-1951 at an upset price of Rs. 10/- per acre. The original grantee Boothaiah, sold the land in question in favour of the appellant under a sale deed dated 27-7-1971. After the demise of original grantee Boothaiah his son, the 1st respondent herein approached the 3rd respondent-Assistant Commissioner to declare the sale deed dated 27-7-1971 in favour of the appellant as null and void and put him in possession of the land in question under the provisions of the karnataka Scheduled Castes and Scheduled Tribes (Prohibition of transfer of Certain Lands) Act, 1978 (for short, 'the Act' ). The 3rd respondent-Assistant Commissioner initiated proceedings and issued notices. The appellant on receipt of notice from the 3rd respondent- assistant Commissioner entered appearance through an Advocate. Despite grant of time the appellant has not filed any objections nor addressed arguments nor appeared before the Assistant Commissioner on the hearing dates. The Assistant Commissioner vide order dated 11-4-2001 held that the sale deed dated 27-7-1971 in favour of the appellant as null and void and directed to resume the land and to put the petitioner in possession of the same. Aggrieved by this order of the assistant Commissioner the appellant filed an appeal before the 4th respondent-Deputy Commissioner. The 4th respondent-Deputy commissioner by his order dated 6-1-2004 rejected the appeal filed by the appellant and confirmed the order of the Assistant Commissioner. The appellant being aggrieved by the order of the Deputy Commissioner approached this Court in W. P. No. 37230 of 2003 and the same came to be allowed on 13-10-2003 and the matter was remitted to the Deputy commissioner for fresh disposal in accordance with law. ( 3 ) AFTER remand from this Court, the appellant filed written arguments before the Deputy Commissioner. ( 3 ) AFTER remand from this Court, the appellant filed written arguments before the Deputy Commissioner. The Deputy Commissioner after considering the written arguments filed by the appellant again passed an order on 6-1-2004 dismissing the appeal by confirming the order of the Assistant Commissioner. Aggrieved by this order of the deputy Commissioner dated 6-1-2004, the appellant filed W. P. No. 5591 of 2004 contending that the grant in favour of the original grantee in the year 1951 was for an upset price. The authorities below have not given a clear finding as to whether the land was granted in accordance with the rule 43 (8) of the Rules under the Mysore Land Revenue Code, 1888. Without giving a finding on the nature of grant the authorities below concluded that permanent non-alienation condition is attracted to the grant in question. It is further, contended that prior to the sale in favour of the appellant in 1971 the original grantee on the security of the land in question obtained a loan from a co-operative society and committed default in payment of the loan by discharging the loan of grantee. The appellant purchased the land in question and therefore the sale in favour of the appellant cannot be held as invalid. The provisions of the act, is not applicable to the sale in favour of appellant. The learned single Judge by rejecting these contentions of the appellant dismissed the writ petition filed by the appellant vide order dated 7-3-2004. Hence this writ appeal. ( 4 ) SRI Ashok Haranhalli, learned Counsel for the appellant re-agitates the contention urged before the learned Single Judge that there is no finding by the authorities below on the question whether the grant in favour of the original grantee in 1951 was a grant under Rule 43 (8) of the Rules under the Mysore Land Revenue Code. In the absence of specific finding in this regard, it is not open for the authorities to impose the non-alienation condition to the grant in question. Though the learned Single Judge in his order holds that there is no clear finding by the authorities proceeds to decide the matter and dismissed the writ petition. In the absence of specific finding in this regard, it is not open for the authorities to impose the non-alienation condition to the grant in question. Though the learned Single Judge in his order holds that there is no clear finding by the authorities proceeds to decide the matter and dismissed the writ petition. ( 5 ) HE further contends that though the relevant land grant rules provides that the grantee can pledge the granted land in favour of a co-operative Bank and the necessary consequences of the same is that the Bank can sell the property for recovery of the amount. In the instant case when the Bank initiated steps for recovery of the amounts due by the original grantee the appellant intervened and cleared the dues. Therefore, the non-alienation condition is not applicable in the instant case. Reliance is placed on the following decision in Anil Kumar srivastava v State of Uttar Pradesh and Another. ( 6 ) SRI Sathyanarayana, learned Counsel for respondent 1 contends that in the first round of litigation the appellant has not filed any objection before the authorities below and has not raised a plea stating that the grant is for an upset price and therefore the non-alienation condition is not attracted. Even after remand from this Court in the second round the appellant has not filed any objections before the deputy Commissioner nor placed any evidence to demonstrate that the upset price of Rs. 10 per acre in 1951 was the marked value. In the absence of plea and evidence it is not open for the appellant to contend that there is no specific finding by the authorities in this regard. He justifies the order of the learned Single Judge. ( 7 ) HEARD the arguments on both the sides. Perused the entire writ papers. ( 8 ) THE Supreme Court of India in Siddegowda v Assistant commissioner, held as under:"6. From the above rule, it is not possible to assume that upset price would always be the market value of the land. The upset price and market price are certainly different concepts and it may be true that in certain cases upset price may be the market value of the land. But that does not mean that upset price fixed shall always be equivalent to the market value of the land. The upset price and market price are certainly different concepts and it may be true that in certain cases upset price may be the market value of the land. But that does not mean that upset price fixed shall always be equivalent to the market value of the land. There are no materials placed before us to show that Rs. 500/- fixed by the authorities was equivalent to the market value for this land. It is also relevant to note that the appellant himself purchased this land within a period of three years from Gungaiah for a total sum of Rs. 3,000/ -. Therefore, we are unable to hold that the upset price fixed at Rs. 500/- per acre was really the market value of the land. If that be so, the prohibition under Rule 43-G would apply. The appellant who had filed the objections before the Assistant commissioner, did not take a plea that the upset price for the grant was really the market value of the land. The main contention raised before the first authority was that the grant did not contain a specific clause prohibiting alienation. Nevertheless the grant contained a clause that the further enjoyment of the land was subject to Land Revenue Code and Rules thereunder for the time being in force and other laws. Evidently, the provisions contained in the Mysore Land Revenue Code are applicable and the assignment in favour of the appellant was in contravention of section 4 of the Act and we do not find any merit in the appeal. It is accordingly dismissed". ( 9 ) KEEPING in view the law laid down by the Apex Court, we have to examine the ground urged by the appellant that the authorities below without giving a finding relating to the nature of grant, it is not permissible for the authorities to impose the non-alienation condition to the grant in question. It is an admitted fact that the appellant in the first round of litigation had not pleaded before the Assistant commissioner nor before the Deputy Commissioner that the grant in question do not attract the non-alienation condition. It is an admitted fact that the appellant in the first round of litigation had not pleaded before the Assistant commissioner nor before the Deputy Commissioner that the grant in question do not attract the non-alienation condition. In the second round of litigation when this Court provided an opportunity by remanding the matter to the Deputy Commissioner the appellant failed to avail the opportunity by filing objections and by placing evidence in support of his contention that the non-alienation condition is not applicable to the grant in question. Therefore, by applying the law declared by the Apex court, it is to be held that the appellant failed to plead and prove before the authority at the first instance that the non-alienation condition is not attracted to the nature of grant in question. Therefore, there is no substance and merit in the contention of the appellant that the authorities under the Act have imposed the non-alienation condition without giving a specific finding with regard to the nature of grant. ( 10 ) BOTH the Assistant Commissioner and Deputy Commissioner in the impugned orders have concurrently held that the grant was in the year 1951 at an upset price of Rs. 10/- per acre. It is further held that the grant of land in favour of the original grantee was for the purpose of coffee cultivation. It is held by the authorities that the upset price of Rs. 10/- per acre in respect of the land granted to the original grantee was not the market value and the same is a reduced upset price. The authorities further concurrently held that the grant in question was in favour of a Scheduled Caste person and the same is not in dispute. This court in its supervisory writ jurisdiction cannot go into the concurrent findings of fact by the authorities under the Act. On this ground also the contention of the appellant that the nature of grant do not attract the permanent non-alienation condition is unacceptable to us. ( 11 ) THE second contention of the appellant that the grantee can pledge the granted land as security for raising a loan in favour of a Co-operative Bank and the necessary consequence of the same is that the bank can sell the property for recovery of the amount. ( 11 ) THE second contention of the appellant that the grantee can pledge the granted land as security for raising a loan in favour of a Co-operative Bank and the necessary consequence of the same is that the bank can sell the property for recovery of the amount. If the Bank can sell the property and recover the amount, then there is no impediment for the appellant to purchase the very same land by clearing the amount due by the original grantee to the concerned Co-operative Bank. When the non-alienation condition is not attracted for the sale of granted land by a Co-operative Bank, the same cannot be applied to the sale in favour of the appellant. The learned Single Judge while answering the second contention of the appellant held that the transaction in the nature of raising a loan by offering the granted land as security to a co-operative Bank cannot be equated for a transaction of sale in favour of the appellant. If the argument of the appellant is accepted then the very object and purpose of the Act will be defeated. We respectfully agree with the reasoning of the learned Single Judge and therefore, we reject the second contention of the appellant. ( 12 ) REALISING the need to ameliorate the living condition of depressed classes of our society the law makers in their wisdom resolved to empower these clauses both politically and economically. To achieve this object of economic empowerment the Act is enacted, so that the land granted to Scheduled Caste and Scheduled Tribe persons shall retain in their hands. The technicalities shall not override the object of the Act. ( 13 ) FOR the reasons stated above, we have no reason to differ with the order of the learned Single Judge and to take a different view. Hence, the writ appeal is dismissed with no order as to costs. --- *** --- .