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2010 DIGILAW 539 (KAR)

M. M. MAHADEV v. STATE OF KARNATAKA

2010-04-15

B.MANOHAR, V.G.SABHAHIT

body2010
JUDGMENT In this appeal, the appellant calls in question the order dated 27-52003 passed by the learned Single Judge dismissing the W.P. No. 12622 of 2003 filed by him challenging the order passed by respondents 2 and 3 resuming the land in favour of the legal representatives of the original grantee. 2. The facts of the case in brief: An extent of 2 acres of land in Sy. No. 42, Block No. 47 situated at Mallathhalli Village, Yeshwanthpura Hobli, Bangalore North Taluk granted in favour of one late Jutta Bhovi on 10-2-1953. The Saguvali Chit was issued on 1-5-1953 under the Darkasth Rule. As per the amended Rule 43(8) of the Karnataka Land Grant Rules, 1969, then existing in the year 1953, the non-alienation condition was for a period of 20 years. However, the said granted land was sold by the wife and children of late Jutta Bhovi on 22-6-1964 in favour of one Sitharamu alias Venkataswamy for a valuable sale consideration. Subsequently, the said Sitharam alias Venkataswamy sold the said lands in favour of one L.M. Madaiah on 22-7-1964 for a valuable sale consideration. It is stated that ever since the sale, L.M. Madaiah, after his death his son who is the appellant herein is enjoying the said land. 3. After coming into force the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 (hereinafter referred to as the 'Act'), an application was presented by the son of Jutta Bhovi seeking for resumption of the land in his favour contending that the sale is in violation of Sections 4 and 5 of the Act and also sought for restoration of the land in his favour. Pursuant to the application made by the son of the original grantee, the Assistant Commissioner by his order dated 29-8-1997 declared that the sale of granted lands in favour of L.M. Madaiah is in violation of Sections 4 and 5 of the Act and ordered for resumption of the lands in favour of the original grantee. Being aggrieved by the said order, the appellant herein filed an appeal under section 5-A of the Act before the Deputy Commissioner contending that the order passed by the Assistant Commissioner is contrary to law. 4. Being aggrieved by the said order, the appellant herein filed an appeal under section 5-A of the Act before the Deputy Commissioner contending that the order passed by the Assistant Commissioner is contrary to law. 4. It is the contention of the learned Counsel for the appellant before the Deputy Commissioner that while granting the land, the condition imposed for non-alienation is for a period of 10 years and the alienation has been made after 11 years and therefore it will not amount to violation of Sections 4 and 5 of the Act. The learned Counsel also contended that the Act is not applicable to the granted lands. The Deputy Commissioner after considering the contention raised by the appellant by its order dated 1-7-2002 was pleased to dismiss the appeal upholding the order passed by the Assistant Commissioner. Being aggrieved by the order passed by the Assistant Commissioner as well as Deputy Commissioner, the appellant filed W.P. No. 12622 of 2003 challenging the same on various grounds and also contended that in view of the amendment to Karnataka Land Revenue Act, 1964, Incorporating Section 29-A of the Karnataka Land Grant Rules, the condition imposed in the grant certificate regarding non-alienation would not come in the way of transfer effected on and from 17-10-1974. It is further contended that the first sale was made to a person belonging to the Scheduled Caste. Hence, the sale is not violative of provisions of Sections 4 and 5 of the Act. 5. The learned Single Judge after considering the entire materials on record and also the judgments relied upon by the appellant herein dismissed the writ petition holding that the finding recorded by the authorities below is purely a question of fact and the same is not liable to be interfered with, by this Court. The appellant being aggrieved by the order passed by the learned Single Judge filed the present writ appeal. 6. Sri M.S. Rajendra Prasad, learned Senior Counsel appearing for the appellant contended that in the absence of original record, the learned Single Judge ought not to have held that the provisions of the Act are applicable and alienation has been made in violation of the terms of the grant. 6. Sri M.S. Rajendra Prasad, learned Senior Counsel appearing for the appellant contended that in the absence of original record, the learned Single Judge ought not to have held that the provisions of the Act are applicable and alienation has been made in violation of the terms of the grant. Further, the learned Counsel contended that the Court below failed to apply the provision of Section 29-A of the Karnataka Land Grant Rules which exempts the application of Section 4(1) of the PTCL Act and alienation took place prior to 1974. Hence, the order passed by the authorities below is contrary to law. In support of his arguments, the learned Senior Counsel relied upon the judgment in the case of Baptist D'almeda (ckceased) by L.Rs. and Anotlrer v Parameshwara and Others and in the case of Mallnaika v Assistant Commissioner, Shimoga2, to contend that where the order of grant or terms of grant is not available, it has to be presumed that the grant has been made in accordance with the Rules that governs the grant at relevant point of time. Further, the amendment dated 4-8-1953 to the Karnataka Land Grant Rules relaxed the rigor of condition to 20 years time. Hence, it is not violative of provisions of the Act. 7. Per contra, learned Counsel appearing for the respondents contended that the order passed by the authorities below is in accordance with law and the sale has been made in violation of the conditions of the Rules and there is no infirmity in the order passed by the authorities below as well as the order passed by the learned Single Judge. 8. We have heard the arguments of the learned Senior Counsel as well as the learned Government Advocate. 9. The facts stated earlier that 2 acres of land in Sy. No. 42, Block No. 47 situated at Mallathhalli Village, Yeshwanthpura Hobli, Bangalore North Taluk was granted in favour of Jutta Bhovi on 10-2-1953 and Saguvali Chit was issued on 1-5-1953 are not disputed. Though the non-alienation period was mentioned as 10 years in the Saguvali Chit, to be noted that as per Rule 43(8) of the Karnataka Land Grant Rules existing in the year 1953-. the non-alienation period is for 20 years. In view of Rule 43(8) of the Karnataka Land Grant Rules, Rules always prevail over any such entry made in the Certificate of grant. the non-alienation period is for 20 years. In view of Rule 43(8) of the Karnataka Land Grant Rules, Rules always prevail over any such entry made in the Certificate of grant. Hence, it is clear that the land granted to Jutta Bhovi cannot be alienated for a period of 20 years. It is not in dispute that 2 acres of land was granted by the State Government to Jutta Bhovi who belongs to a weaker section of the society which is the reason for imposing the condition that the land shall not be alienated for a period of 20 years. 10. Further, it is also the contention of the learned Counsel for the appellant that under Rule 29-A of the Karnataka Land Grant Rules, the condition imposed in the grant certificate that alienation would not come in the way of transfer effected on and from 17-10-1974 and alienation made thereafter to the person other than Scheduled Castes or Scheduled Tribe would be valid is also not correct. The Act came into force on 1-1-1979. Section 11 of the Act contemplates that the provisions of the Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any custom, usage or contract or any decree or order of a Court, Tribunal or other authority. In view of Section 11 of the Act, this act prevails over any other Acts or Rules made thereunder. The Division Bench of this Court in a Judgment in Smt. Bhagi Hengsu v Rocky Lasrado and Others3, held that Section 11 of the Act, which has overriding effect! over all other enactments, Rule 29-A must yield to it. Therefore, it is not open to the appellant to contend that in view of Section 29-A of the Karnataka Land Grant Rules, he can alienate the land after 17-10-1974 is misconceived. The judgment relied on by the appellant in the case of Baptist D'almeda is not applicable to the present case. This Court, while interpreting the Madras Board Standing Orders held that where the order of grant or terms of grant is not available it has to be presumed that the grant was made in accordance with the Rules. The judgment relied on by the appellant in the case of Baptist D'almeda is not applicable to the present case. This Court, while interpreting the Madras Board Standing Orders held that where the order of grant or terms of grant is not available it has to be presumed that the grant was made in accordance with the Rules. As per the Madras Board Standing Orders in view of the amendment to the Standing Order, the prohibition of alienation to any person other than the members of the depressed class was not in existence. The facts of the above case are also not applicable to the case on hand. Another decision relied upon by the learned Counsel for the appellant in the case of Mallnaika was also not helpful to the appellant. 11. The Hon'ble Supreme Court has examined the issue in the decision in the case of FDP Company v Patel Engineering Limited and Another1 and held that Section 5(3) of the Act clearly provides that any person other than the grantee or his legal heir in possession of the granted land shall be deemed to be in possession under a transfer which is null and void under Section 4(1) and 4(2) of the Act until and unless anything contrary is established. Further the Hon'ble Supreme Court examined the similar issue in detail in the case of Manchegowda and Others v State of Karnataka and Others2, in paragraph 17 and held as under: "Granted lands were intended for the benefit and enjoyment of the original grantees who happen to belong to the Scheduled Castes and Scheduled Tribes. At the time of the grant, a condition had been imposed for protecting the interests of the original grantees in the granted lands by restricting the transfer of the same. The condition regarding the prohibition on transfer of such granted lands for a specified period, was imposed by virtue of the specific term in the grant itself or by reason of any law, rule or regulation governing such grant. It was undoubtedly open to the grant or at the time of granting lands to the original grantees to stipulate such a condition, the condition being a term of the grant itself, and the condition was imposed in the interests of the grantee. Except on the basis of such a condition the grantor might not have made any such grant at all. Except on the basis of such a condition the grantor might not have made any such grant at all. The condition imposed against the transfer for a particular period of such granted lands which were granted essentially for the benefit of the grantees cannot be said to constitute any unreasonable restriction. The granted lands were not in the nature of properties acquired and held by the grantees in the sense of acquisition, or holding of property within the meaning of Article 19(1)(f) of the Constitution. It was a case of a grant by the owner of the land to the grantee for the possession and enjoyment of the granted lands by the grantees and the prohibition on transfer of such granted lands for the specified period was an essential term or condition on the basis of which the grant was made. It has to be pointed out that the prohibition on transfer was not for an indefinite period or perpetual. It was only for a particular period, the object being that the grantees should enjoy the granted lands themselves at least for the period during which the prohibition was to remain operative. Experience had shown that persons belonging to Scheduled Castes and Scheduled Tribes to whom the lands were granted were, because of their poverty, lack of education and general backwardness, exploited by various persons who could and would take advantage of the said plight of these poor persons for depriving them of their lands. The imposition of the condition of prohibition on transfer for a particular period could not, therefore, be considered to constitute any unreasonable restriction on the right of the grantees to dispose of the granted lands. The imposition of such a condition on prohibition in the very nature of the grant was perfectly valid and legal". 12. In view of the above. We are of the view that there is no infirmity or irregularity in the order passed by the authorities below and the same was confirmed by the learned Single Judge of this Court by elaborate orders. Hence, we find no merit in the writ appeal, accordingly the same is hereby dismissed.