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2012 DIGILAW 308 (KAR)

Akkayamma v. State of Karnataka

2012-03-29

B.V.NAGARATHNA, VIKRAMAJIT SEN

body2012
ORDER VIKRAMAJIT SEN, CJ.—This appeal assails the order dated 30th May, 2011 by which the learned single Judge dismissed the writ petition and mulcted the petitioner with costs of Rs. 10,000/- for ‘virtually misleading the Court and asserting non-existing grounds’. The writ petition challenges the order of the Deputy Commissioner, Chikkaballapura District dismissing the Appeal filed against the Order dated 19.1.2009 passed by the Assistant Commissioner, Chikkaballapura Sub-Division holding that the alienation of the land in question was in violation of Section 4(1) of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978) (‘PTCL Act’ for brevity). 2. The reason for the dismissal of the writ petition with costs is borne out from a succinct narration of the facts of the case. We need to revert to the earlier order dated 27.1.2007 passed by the Deputy Commissioner of the undivided Kolar district, which remained unchallenged by all concerned. That Order held that the non-alienation condition for a period of 15 years had been violated. Hence the alienation fell within the mischief of Section 4(1) of the PTCL Act. Therefore, the sale was inefficacious, null and void and the land was required to be re-allotted to the original grantee. By a previous writ petition, viz., W.P. No. 18145/2010, another learned single Judge had granted permission to the appellant to assail the said order dated 27.1.2007. It is in these circumstances that W.P. No. 38245/2010 came to be filed, which as we have already mentioned, was dismissed with costs of Rs. 10,000/-. 3. Learned counsel for the appellant has reiterated the case put forth before the writ Court. According to the appellant, the subject land was purchased by Byatappa uncontrovertly belonging to the Schedule Castes community, in an auction sale by the Government for a consideration of Rs. 4,000/-. The learned single Judge has recorded that the submission that the sale consideration was Rs. 4,000/- is intendingly misleading, since it was only Rs. 40/- (which only covered procedural fee for the issuance of the Saguvali Chit dated 18.7.1963). The writ Court also found that Rules 43-G and 43-J of the Mysore Land Revenue Code, 1888 were not attracted, even assuming that the land had originally been allowed to be used by Byatappa under the ‘Grow More Food’ scheme. 40/- (which only covered procedural fee for the issuance of the Saguvali Chit dated 18.7.1963). The writ Court also found that Rules 43-G and 43-J of the Mysore Land Revenue Code, 1888 were not attracted, even assuming that the land had originally been allowed to be used by Byatappa under the ‘Grow More Food’ scheme. The Writ Court also found that reliance on behalf of the petitioner/appellant on Siddamma vs. Chikke Gowda, 1991 (1) Kant. L.J. 210 was of no avail. 4. Learned counsel for the appellant has drawn our attention to B.K. Muniraju vs. State of Karnataka, AIR 2008 SC 1438 which clarifies that the nomenclature employed in the document as ‘Certificate of Grant’ should not inevitably and inexorably lead to the conclusion that the land was conveyed by way of a grant. Their Lordships had enjoined a perusal of the document itself to ascertain the nature of the conveyance. The concurrent finding in Muniraju was that despite the document being titled as a ‘Certificate of Grant’, it was not granted land and, therefore, dismissed the appeal. We must, therefore, immediately peruse the conveyance in question. The nomenclature employed therein is—“Grant Certificate under Land Revenue Code Condition-E Scheduled Caste”. The document employs the words, ‘purchased.....the entire cost of Rs. 40/- “in favour of Byatappa. However, the Certificate clearly stipulates that the land in question had been granted on the condition of its not being alienated for a period of 15 years. Keeping these stipulations in view, the Deputy Commissioner had indeed struck down the sale and ordered the re-allocation of the land to the original grantee. This also is the view of the learned single Judge and, therefore, there were concurrent findings of fact against the appellant. 5. It does not lie in the mouth of the appellant, who has purchased the land contrary to the explicit terms of non-alienation for a period of 15 years to contend that, that stipulation could not have been imposed on the ground that the subject land had been made available to Byatappa under the ‘Grow More Food’ scheme. Three decisions of the Supreme Court are relevant in this regard namely, Siddegowda vs. Assistant Commissioner, AIR 2003 SC 1290 ; Guntaiah vs. Hambamma, (2005) 6 SCC 228 ; and Chinde Gowda vs. Puttamma, (2007) 12 SCC 618 . Three decisions of the Supreme Court are relevant in this regard namely, Siddegowda vs. Assistant Commissioner, AIR 2003 SC 1290 ; Guntaiah vs. Hambamma, (2005) 6 SCC 228 ; and Chinde Gowda vs. Puttamma, (2007) 12 SCC 618 . We can do no better than to reproduce the following enunciation of the law lucidly made by the Supreme Court in Guntaiah: “It is also pertinent to note that the prohibition regarding alienation is a restrictive covenant binding on the grantee. The grantee is not challenging that condition. In all these proceedings, challenge is made by the third party who purchased the land from the grantee. The third party is not entitled to say that the conditions imposed by the grantor to the grantee were void. As far as the contract of sale is concerned, it was entered into between the Government and the grantee and at that time the third-party purchaser had no interest in such transaction. Of course, he would be entitled to challenge the violation of any statutory provisions but if the grant by itself specifically says that there shall not be any alienation by the grantee for a period of 15 years, that is binding on the grantee so long as he does not challenge that clause, more so when he purchased the land, in spite of being aware of the condition. The Full Bench seriously erred in holding that the land was granted under Rule 43-J and that the authorities were not empowered to impose any conditions regarding alienation without adverting to Section 4 of Act 2 of 1979. These lands were given to landless persons almost free of cost and it was done as a social welfare measure to improve the conditions of poor landless persons. When these lands were purchased by third parties taking advantage of illiteracy and poverty of the grantees, Act 2 of 1979 was passed with a view to retrieve these lands from the third-party purchasers. When Act 2 of 1979 was challenged this Court observed in Manchegowda vs. State of Karnataka, AIR 1984 SC 1151 : “17. Granted lands were intended for the benefit and enjoyment of the original grantees who happen to belong to the Scheduled Castes and Scheduled Tribes. When Act 2 of 1979 was challenged this Court observed in Manchegowda vs. State of Karnataka, AIR 1984 SC 1151 : “17. 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 grantor at the time of granting lands to the original grantees to stipulate such a condition the condition being a terms 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. The condition imposed against the transfer for a particular period 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(l)(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. 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 sad 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.” 6. In view of this elucidation of the law, we are of the opinion that the appellant purchaser has no locus standi to challenge any of the terms contained in the grant including the clause mandating non-alienation for a period of 15 years. In fact in Guntaiah, (2005) 6 SCC 228 the Hon’ble Supreme Court overruled the Full Bench Judgment of this Court and opined that ‘the conditions restricting alienation imposed by the Authorities are legally valid and the finding of the Full Bench to the contrary is not correct...... The Authorities shall take appropriate steps pursuant to the order passed by the Authorities under Act 2 of 1979 within a period of three months’. 7. The Grant Certificate is dated 18th July, 1963 and the first alienation by Byatappa occurs on 23.12.1964, is in clear violation of the non-alienation clause. No title, therefore, can pass to the appellant. In these circumstances, the appeal is without merits. The appellant shall pay costs of Rs. 20,000/-, in addition to Rs. 10,000/- imposed by the learned single Judge in the impugned order.