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2013 DIGILAW 1316 (KAR)

Earamma @ Muni Veeramma v. State of Karnataka

2013-11-18

N.K.PATIL, R.B.BUDIHAL

body2013
Judgment : 1. The appellant, questioning the correctness or otherwise of the order impugned passed by the learned Single Judge, in Writ Petition No.38163/2009 dated 14th June 2011, has presented this writ appeal. 2. In the aforementioned writ petition, the appellant herein had sought for quashing the order dated 1st October 2009 passed by the Special Deputy Commissioner, Bangalore District, Bangalore mace in Case No. SC/ST (A)/51/2005-06 and consequently to confirm the order passed by the Assistant Commissioner, Bangalore North Division, Bangalore, vide Annexure C to the writ petition. The learned Single Judge, after hearing both the parties, dismissed the said writ petition along with other writ petitions, by his common order dated 14th June 2011. The said order passed by the learned Single Judge is under challenge in this appeal. 3. Brief facts of the case in hand are that, the appellant, being the legal heir, had purchased an extent of 02 acres of agricultural land in Survey No.177/3 of Bagalur Village, Jala hobli, Bangalore North Taluk, which was a gomal land granted in favour of one Motappa in the year 1955 by the Special Deputy Commissioner, Bangalore District, Bangalore, subject to usual conditions and in terms of the Rules governing grant of lands in favour of persons belonging to Scheduled Caste/Tribe community, as the said Motappa belonged to scheduled Caste/Tribe community. Notwithstanding restrictive conditions not to alienate the land for a minimum period of 20 years, Motappa sold the subject land m favour of one Eramma @ Muniveerammma (mother of appellant herein) as per a sale transaction during the year 1960 and thereafter several developments have taken place. When things stood thus, the legal heir of said Motappa, namely B.N. Muniraju - grandson of Motappa through his son Narayanappa, arrayed as fourth respondent herein, filed a petition before the Assistant Commissioner, Bangalore North Sub Division, Bangalore, invoking Section 5 of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 (for short, the Act) for resumption of the land for restoration to him. The Assistant Commissioner was of the view that the land having been alienated quite some time before the Act came into force and the purchaser having enjoyed the land for more than a period of 12 years before the Act came into force, held that the provisions of the Act are not attracted and therefore declined to act under the provisions of the Act at the instance of fourth respondent and by his order dated 27th December 2004 dismissed the petition, vide Annexure C to the writ petition. Being aggrieved by the said order passed by the Assistant Commissioner, the fourth respondent herein filed an appeal before the Special Deputy Commissioner in No.SC.ST(A).49/2005-06. The Special Deputy Commissioner allowed the said appeal, setting aside the order of the Assistant Commissioner and reversed the order of the Assistant Commissioner, holding that the registered sale deed No.2488/1960-61 dated 24-11-1960 under which the land in Survey No. 177 measuring 02 acres situate at Bagalur Village, Jala Hobli (Previsously in Devanahalli Taluk) now m Bangalore North (Additional) Taluk is alienated in favour of Smt. Eramma, W/o. Chikka Pillappa, the appellant herein as null and void since the said alienation is in violation of the provisions of Section 4 (1) of the Act and that by virtue of the said sale deed, she or her legal heirs shall not derive any right and title over the land in question and further ordered under Section 5 (l)(a) and (b) of the Act to resume the said land to Government free from all encumbrances and restore the same m favour of the original grantee or his legal heirs, vide Annexure D to the writ petition. Aggrieved by the said order of the Special Deputy Commissioner dated 1st October 2009, the appellant herein filed the writ petition in W.P.No.38163/2009 before the learned Single Judge. The said writ petition had come up for consideration before the learned Single Judge along with other connected writ petitions and the learned Single Judge, also dismissed the writ petition filed by appellant herein, holding that the relevant Rule prevailed at the time of grant, i.e. in the year 1955, imposed a statutory condition of non-alienation for a period of 20 years and if so, a transaction of the year 1960, which is within a period of five years from the grant, is inevitably in violation of the condition. Being aggrieved by the dismissal of the writ petition by the learned Single Judge, the appellant felt necessitated to present this appeal, seeking appropriate reliefs as stated supra. 4. The principal submission canvassed by the learned counsel appearing for appellant, Shri.K.N. Shiva Ready, at the outset is that, the learned Single Judge has failed to consider the specific ground taken by the appellant in the writ petition at paragraph 13 of the writ petition to the effect that the original grantee had filed petition under Sections 4 and 5 of the Act before the Assistant Commissioner, Doddaballapur Sub Division, Bangalore in proceedings No.LND 3C/ST/ 17/1983-84 for restitution of the land in question and the same was dismissed on merits on 17-06-1985. The said order has since not been challenged by the fourth respondent, it has reached finality and therefore, the fourth respondent is governed by the principles of res judicata under Section 11 of the Civil Procedure Code and this aspect of the matter has not been considered either by the Special Deputy Commissioner,, while passing the order dated 1st October 2009 or by the learned Single Judge, while passing the order dated 14th June 2011. Therefore, he submitted that, the order passed by the learned Single Judge as well as the order passed by the Special Deputy Commissioner are liable to be set aside and order passed by the Assistant Commissioner, Bangalore North Division, Bangalore, dated 17th June 1985 in Case No.LND.SC.ST. 17/83-84 be restored. 5. As against this, Shri.V.R. Balaraj, learned counsel appearing for fourth respondent and Shri.B. Veerappa, learned Additional Government Advocate appearing for Respondents 1 to 3, inter alia contended and substantiated the orders passed by the Special Deputy Commissioner and the learned Single Judge stating that, the same are passed in strict compliance of the relevant provisions of the then existing Act and Rules and therefore, interference in the same is unwarranted. To substantiate the said submission, learned counsel appearing for fourth respondent is quick to point out and submit that the original grant was made in favour of original grantee, one Motappa, as early as in the year 1955. Admittedly, sale transactions took place and the registered sale deed was executed during 1960 within a period of five years, in contravention of non-alienation period of 20 years as per the then existing Rule 43(8), vide Notification dated 4th August 1953 referred above. Admittedly, sale transactions took place and the registered sale deed was executed during 1960 within a period of five years, in contravention of non-alienation period of 20 years as per the then existing Rule 43(8), vide Notification dated 4th August 1953 referred above. The sale transaction took place within a period of five years, which by itself establishes beyond reasonable doubt that the alienation between the appellant the original land grantee is null and void ab initio in the eye of low and that fact has been rightly considered by the learned Single Judge as pointed out and submitted by the learned Government Pleader appearing for respondents/authorities, Shri. R.B. Sathyanarayana Singh, at paragraph 9 of the order of the learned Single Judge. The reasoning given by the learned Single Judge at paragraphs 10 and 11 of his order is well reasoned, well founded and there is no error apparent on the face of the same and hence, interference in the same is uncalled for. 6. Further, regarding ground No. 13 urged by the learned counsel appearing for appellant in the writ petition filed before the learned Single Judge, learned Additional Government Advocate appearing for respondents 1 to 3 and learned counsel appearing for fourth respondent pointed out and submitted that the said ground cannot be sustained and is liable to be vitiated for the reason that the order passed by the Assistant Commissioner dated 17th August' 1985 is a suo motu proceedings initiated on the basis of an alleged report submitted by the Tahsildar, which is one without authority of law. When the said order passed by the Assistant Commissioner is not an order in the eye of law, question of challenging the same does not arise. The fourth respondent has filed the application for resumption of the land in question, which was rejected by the Assistant Commissioner, Bangalore North Sub Division, Bangalore in No.K.SC.ST.21/2003- 04 dated 27th December 2004. When the said order passed by the Assistant Commissioner is not an order in the eye of law, question of challenging the same does not arise. The fourth respondent has filed the application for resumption of the land in question, which was rejected by the Assistant Commissioner, Bangalore North Sub Division, Bangalore in No.K.SC.ST.21/2003- 04 dated 27th December 2004. The same was questioned by the fourth respondent before the Special Deputy Commissioner and Special Deputy Commissioner, while passing order on the said appeal, also considered the suo motu proceedings initiated by the Assistant Commissioner and the order passed on 17th August 1985 and the Special Deputy Commissioner has considered the said aspect exhaustive!) and after critical evaluation of the oral and documentary evidence available on file and relying upon the well settled law laid down by the Hon'ble Apex Court and this Court in catena of decisions, has assigned valid reasons at internal page 5 and allowed the said appeal, setting aside the suo motu proceedings/order passed by the Assistant Commissioner and held that there is no grant Certificate as such produced by the appellant nor any substantive material placed to indicate the conditions of grant. Therefore, he submitted that interference in the impugned orders passed by the Special Deputy Commissioner as well as the learned Single Judge is uncalled for. 7. After careful consideration of the submission of the learned counsel appearing for the parties and after perusal of the order passed by the learned Single Judge, it is manifest on the face of the same that, there is no error of law much less material irregularity nor we find any miscarriage of justice, as rightly pointed out by the learned counsel appearing for respondents. The relevant point for consideration before us is, Whether the sale transaction executed during 1960, when the land grant Certificate issued in 1955 with a non alienation clause of 20 years is sustainable in law or not? 8. The relevant point for consideration before us is, Whether the sale transaction executed during 1960, when the land grant Certificate issued in 1955 with a non alienation clause of 20 years is sustainable in law or not? 8. After going through the entire material available on file, including the original records placed before us and the orders passed by the Assistant Commissioner, Special Deputy Commissioner and the learned Single Judge, it reveals that the original grant has been made by Government in favour of late Mctappa in the year 1955 along with a non-alienation clause for a period of 20 years as per the then existing Rule 43(8) of the Rules vide Notification bearing No.R.7594-604-L-266-53-2 dated 4th August 1953. The same is not in dispute. It is further not disputed that the alleged sale transaction took place in the year 1960. When the original grant made in favour of original grantee was in force with a non-alienation period of 20 years from 1955, the registered sale deed dated 24th November 1960 executed by late Motappa, the original grantee, in favour of the mother of the appellant, late Eramma is in clear violation of fhe terms and conditions of the Land Gi ant Act and Rules governing as on the date of grant of lands in favour of persons belonging to Scheduled Caste/ Scheduled Tribe community and cannot under any circumstances sustained. Therefore, the said sale deed executed is null and void ab initio in the eye of law, as rightly held by the Special Deputy Commissioner in his order dated 1st October 2009. 9. Therefore, the said sale deed executed is null and void ab initio in the eye of law, as rightly held by the Special Deputy Commissioner in his order dated 1st October 2009. 9. When such being the case and when the land in question was granted by Government in 1955 in favour of late Motappa, who belonged to Scheduled Caste Community, with non-alienation period of 20 years vide Notification dated 4th August 1953, without noticing this fact, the Assistant Commissioner, has initiated a suo motu proceedings under Section 5 of the Act, on the basis of the alleged report of the Tahsildar, Devanahalli Taluk, Devanahalli, wherein the fourth respondent is not party to the said proceedings and passed the order on 17th June 1985, holding that the alienation of the land is not hit by the provisions of the Act on the ground that the land has been alienated much before the date of coming into force of the act and that the alienee has perfected her title for more than 12 years as on 01-01-1979, the date on which the Act came into force and accordingly, closed the matter. The said suo motu proceedings/order passed by the Assistant Commissioner dated 17th August 1985 has been rightly analysed by the Special Deputy Commissioner and the Special Deputy Commissioner, after holding strict and thorough enquiry as envisaged under the relevant provisions of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1979, has rightly allowed the appeal filed by the fourth respondent herein and set aside the order passed by the Assistant Commissioner, holding that the registered sale deed No.2488/1960-61 dated 24th November 1960 under which the land in question is alienated in favour of late mother of appellant herein-, Smt, Eramma W/o. Chikka Pillappa is ritiH and void since the alienation is in violation of the provisions of Section 4 (1) of the Act and that by virtue of the said sale deed, she or her legal heirs shall not derive any right and title over the land in question and further ordered under Section 5 (l)(a) and (b) of the Act to resume the said land to Government free from all encumbrances and restore the same in favour of the original grantee or his legal heirs. Being aggrieved by the said order passed by the Special Deputy Commissioner, the appellant herein filed Writ Petition No.38163/2009 before the learned Single Judge, and the learned Single Judge, by his order dated 14th June 2011, rightly confirmed the order passed by the Special Deputy Commissioner, by assigning valid reasons at paragraphs 10 and 11 of his order. The said reasoning given by the learned Single Judge is well founded and well reasoned. We do not find any error or illegality as such either in the order passed by the Special Deputy Commissioner or in the order passed by the learned Single Judge nor the appellant has made out a good ground to warrant interference. 10. Regarding ground No. 13 taken by the appellant in the writ petition filed before the learned Single Judge that, the fourth respondent is governed by the principles of res judicata under Section 11 of the Civil Procedure, as he has not challenged the order passed by the Assistant Commissioner is concerned, the said ground taken by the appellant cannot be sustained for the simple reason that, the said aspect has been elaborately considered by the Special Deputy Commissioner in the order passed by him on 1st October 2009 in No.SC.ST(A).49/2005-06 vide Annexure D, and held that the suo motu proceedings initiated by the Assistant Commissioner is without holding proper enquiry, without examining the correctness or otherwise of the earlier proceedings held by the then Assistant Commissioner, Doddaballapur Sub-division, Bangalore, resulting in palpable error of not following the prescribed procedure as well as not affording an opportunity to both the parties and in clear violation of the principles of natural justice and it does not stand in the eye of law. Therefore, the said ground urged by the appellant cannot be sustained and liable to be vitiated. Further, it can be seen that the said specific ground has not been urged before the learned Single Judge, when the matter was taken up for consideration. The contention taken by the learned counsel appearing for appellant in the writ petition has been explicitly recorded at paragraph 8 of the order passed by the learned Single Judge, from which, it is evident that the said ground has not been specifically urged. The contention taken by the learned counsel appearing for appellant in the writ petition has been explicitly recorded at paragraph 8 of the order passed by the learned Single Judge, from which, it is evident that the said ground has not been specifically urged. Whatever contention taken by the counsel has been considered by the learned Single Judge and after hearing the learned counsel appearing for the parties, by assigning valid and cogent reasons at paragraphs 10 and 11 of the order, he has dismissed the writ petition along with other connected writ petitions. Therefore, the ground taken at paragraph 13 of the writ petition and the submission of the learned counsel appearing for appellant that the fourth respondent is governed by the principles of res judicata cannot be sustained nor the same is of any assistance to him at this stage in this appeal, for the reason that, admittedly the sale transaction took place within a period of five years when the non alienation condition of 20 years was well in existence. This itself is sufficient for this Court to hold that the order passed by the Special Deputy Commissioner as well as the order passed by the learned Single Judge are strictly in consonance with the relevant provisions of the then existing Act and Rules. 11. Having regard to the totality of the case on hand and having regard to the facts and circumstances of the case and considering the factual and legal aspects of the matter, we do not find any justification or good ground to interfere in the well considered orders passed by the learned Single Judge as well as the Special Deputy Commissioner. Hence, the appeal filed by appellant is liable to be dismissed as devoid of merits. Accordingly, it is dismissed.