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Karnataka High Court · body

2011 DIGILAW 684 (KAR)

L. Krishnoji Rao v. State of Karnataka

2011-07-11

D.V.SHYLENDRA KUMAR

body2011
Judgment : 1. Provisions of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 (for short, ‘the Act’) while have brought misery, hardship, heartburn and what not to those purchasers who are caught within the mischief of Section 4 of the Act and consequential follow up action in terms of Section 5 of the Act, have nevertheless provided some exit routes to some of those chance purchasers who are not caught within the web of this violation of either under subsection (1) or sub-section (2) of Section 4 of the Act. 2. An examination of the transactions in respect of a granted land under the provisions of the Act is confined to two things. Firstly if the transaction was prior to the Act coming into force, as to whether the transaction was in violation of any of the conditions subject to which land had been granted and secondly if the transaction is subsequent to the Act coming into force, not merely such violation but whether it is accompanied by a prior permission accorded by the State Government in terms of under sub-section (2) of Section 4 of the Act. Therefore, it is clear that in respect of transactions which are prior to the Act coming into force, it is only examination on the touchstone of the applicability or otherwise of sub-section (1) of Section 4 of the Act. 3. The present writ petitions are by a good number of persons who claims that they have derived their right, title or interest through as many sale deeds executed in their favour by ninth respondent, who, it appears, had derived right, title and interest in an extent of 2 acres of land in Sy.No.61 of T. Dasarahalli Village, Bangalore North Taluk under two sale transactions dated 28-9-1972 for an extent of one acre and the other transaction dated 27-11-1972 for the rest of the extent of subject land, which was subject-matter of grant dated 19-4-1930 made by the then revenue authorities, in favour of one Muniga son of Munikandara, a person belonging to depressed class community. 4. 4. Petitioners claims that they are aggrieved by the order dated 20-5-2011, passed by the Special Deputy Commissioner, arrayed as second respondent to the writ petitions, who has reversed the earlier order dated 10-3-2008 passed by the Assistant Commissioner, Bangalore north sub-division in proceedings No. K SC/ST 4/06-07, whereunder while the Assistant Commissioner had rejected an application filed under Section 5 of the Act by the respondents 4 to 8 herein. The Special Deputy Commissioner exercising his appellate power at the instance of the applicants, had reversed the order and held that the two sale transactions of the year 1972 and all subsequent transactions are voided, for two reasons viz., that the transactions are in violation of the terms of grant i.e., one for prohibition for alienation permanently and secondly for not obtaining prior permission of the State Government before transferring the subject land by the grantee and his children. 5. It is this order of the Deputy Commissioner, which is questioned in these writ petitions by persons claiming to be in possession and who have constructed some dwelling units having purchased small bits and pieces of the subject land from ninth respondent vide various sale transactions and who claim that the order passed by the Deputy Commissioner is not in consonance with the statutory provisions, but clearly in contravention and at variance with the same etc. 6. Petitions had been admitted by issue of rule and the respondents are served. While State and the statutory authorities are represented by Sri R Omkumar, learned AGA, Sri N. Devhadas, learned Senior Advocate, appearing for Sri Y. Hariprasad for respondents 4 to 8 and the petitioners are represented by Sri Padmanabha Mahale, learned Senior Advocate for M/s. Jayaraj and Associates. 7. Heard the submissions of all Counsel appearing for the parties for disposal. 8. 7. Heard the submissions of all Counsel appearing for the parties for disposal. 8. Submission of Sri Padmanabha Mahale, learned Senior Advocate for the petitioners is simple and straight, who submits that the grant being of the year 1930, to be precise on 29-4-1930 followed by saguvali chit issued on 29-3-1931, whether or not any conditions had been incorporated either in the grant order or in the saguvali chit, which is automatically impressed with the grant in terms of the general orders and the rules governing such grants; that in terms of the Government order dated 12-9-1929 in No.R.2122-81/LR 368-28-5-5, the conditions which were prevalent till then had come to be modified; that a non-alienation period of 10 years had come to be enhanced to 20 years and the first two sale transactions being after the expiry of the period of 20 years from the date of grant or even date of issue of saguvali chit, there is no violation of the prohibitory condition and therefore the provisions of sub-section (1) of Section 4 of the Act are not attracted and the Deputy Commissioner has committed an error in law in assuming this legal position on a wrong premise that the grant carried with the condition of permanent non-alienation. 9. It is also submitted that the transactions being in the nature of transfer prior to the Act coming into force, provisions of sub-section (2) of Section 4 of the Act are not attracted and here again, the Deputy Commissioner has committed an error in law and therefore the order of the Deputy Commissioner is not sustainable, it is liable to be quashed or set aside and the order as had been passed by the Assistant Commissioner to be restored. 10. 10. Per contra, appearing on behalf of respondents 4 to 8, submission of Sri N. Devhadas, learned Senior Advocate, is that while at the time of grant, it is no doubt that the Government order dated 29-4-1930 was in vogue and it do had come to be modified in terms of the amendment brought about by the Government Order No. R 4609-LR-98-35-63, dated 31-1-1936 or other Government order dated 29-9-1938 and it carried permanent non-alienation condition as indicated under Rule 43(8) read with Rule 43(5) of the Grant Rules governing grants made in favour of depressed classes, a rule framed under Section 233 of the Mysore Land Revenue Code, 1888, that even on the date of transactions, these rules were very much in vogue and therefore if the Appellate Authority had applied these rules, it cannot be said that the Appellate Authority has committed any illegality or error in law and that the order passed by the Appellate Authority having the effect of achieving the object of the Act, the order should be sustained and no interference is warranted. 11. It is also submitted that the grant order being not available, the condition of grant being not known, until and unless the grant order is read in juxtaposition with the rule, as it prevailed even at the time of the grant, particularly as Rule 43 was in vogue even at the time of the grant and unless this examination is done, opining on one or the other way may not be proper and the learned Senior Advocate seeks for according some time to produce the grant order and to apprise this Court the legal position. 12. Legal position does not depend not depend upon the extent of examination made, but a finding recorded on an incorrect legal position can always be corrected, as it is, if at all, a finding or decision rendered on a mistaken impression of law. 13. 12. Legal position does not depend not depend upon the extent of examination made, but a finding recorded on an incorrect legal position can always be corrected, as it is, if at all, a finding or decision rendered on a mistaken impression of law. 13. Be that as it may, there is nothing more in the Government order dated 12-9-1929, which, without dispute, governs the grant in the present case and the contents of not only the Government order dated 29-7-1938 whereby Rule 43 is amended, which had provided for permanent non-alienation condition of such grants, but more relevant question in the present examination is as to whether the amendment to the Rule which was brought about in the year 1938 could have any retrospective operation to get into a grant order made in the year 1930. That means the rule has to have a retroactive operation. 14. It is well-settled legal principle that any rule operates prospectively and though Sri Devhadas, learned Senior Advocate appearing or respondents 4 to 8 in this regard submits that for this purpose, an examination of the provisions of Section 233 read with the amended rule is required to be made, I am of the view that Section 233 of the Revenue Code, which, undoubtedly, is a relevant examination, but is only an enabling rule-making power delegated to make rules in favour of the administrative authorities under the Land Revenue Code. A rule framed under this provision and in furtherance of the Government order dated 12-9-1929 or 29-7-1938, as the case may be, can if at all have prospective operation and not a retrospective operation. Till the rule came to be amended by the Government order dated 29-7-1938, the condition as had been indicated in the Government order dated 12-9-1929 viz., non-alienation for a period of 20 years, operated and grants made thereafter are impressed with statutory conditions of permanent non-alienation. But with all that, the condition of non-alienation cannot be imported to a grant made between 12-9-1929 and 29-7-1938, when all grants made during the interregnum are all governing for only 20 years non-alienation condition. 15. Examination of the matter under sub-section (1) of Section 4 of the Act is when a transaction takes place before the Act coming into force, whether the transaction or transfer is a voided transaction on the touchstone of the condition as prevailed on the date of grant. 15. Examination of the matter under sub-section (1) of Section 4 of the Act is when a transaction takes place before the Act coming into force, whether the transaction or transfer is a voided transaction on the touchstone of the condition as prevailed on the date of grant. The condition does not keep varying with the amendment or changes made in the law, particularly prescribing different period of prohibition of non-alienation conditions. 16. That condition gets fixed or determined as per the law that prevailed on the date of grant, but if at all there is any scope, it is in the manner of computation of period as to the starting point and Courts having taken the view that prohibition period should be computed from the date when the grant certificate or saguvali chit is issued and the grantee being putting in possession of the land and not even before etc. But, that question is not an issue here, as the present writ petitions are liable to be examined only on the touchstone of the condition as was statutorily imposed on the date of grant. 17. On such examination, it is very clear that the condition being one of prohibition for a period of 20 years and the transactions which have taken place in the year 1972 being beyond the period of 20 years either from 1930 or 1931 do not get caught within the mischief of sub-section (1) of Section 4 of the Act. Sub-section (2) of Section 4 of the Act is totally ruled out, as the transactions are much before the Act coming into force. 18. It is in this view of the legal position as obtained based on the factual position, the order passed by the Deputy Commissioner is not sustainable. It is accordingly, the impugned order is quashed by issue of writ of certiorari and the writ petitions are allowed holding that the provisions of the Act are not applicable to the transactions. 19. Writ petitions allowed. Rule made absolute.