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2013 DIGILAW 632 (KAR)

Narayanamma v. Munikempaiah

2013-06-05

A.N.VENUGOPALA GOWDA

body2013
JUDGMENT 1. This writ petition is directed against an order passed by the 2nd respondent, as at Annexure-A, allowing an appeal filed by the 1st respondent, as against an order as at Annexure-E, passed by the 3rd respondent. 2. Material facts of the case are that: The land bearing Sy.No.118, measuring to an extent of 2 acres, situated at Budihal Village, Kasaba Hobli of Devenahalli Taluk, Bangalore Rural District, which is the subject matter of the case, was granted in favour of 1st respondent on 23.03.1962 at Rs.15/- per acre and with a condition that the granted land should not be alienated for a period of 15 years. That on 23.05.1973, the land in question was sold by the 1st respondent in favour of one Hanumanthappa, under a registered sale deed. The petitioner purchased the land in question from said Hanumanthappa on 10.10.1977, under a registered sale deed. After coming into force of Karnataka Act No.2 of 1979, the respondent No.1/grantee, moved the 3rd respondent for restoration of the granted land. The 3rd respondent by an order dated 24.11.1997 held that the land in question is granted to a person belonging to Schedule Tribe community and that a condition is attached to the grant prohibiting the transfer of property for a period of 15 years and first transfer of the land in question having taken place on 23.05.1973, within the prohibited period of 15 years, invalidated the sale transaction and ordered for restoration of the land to the grantee/1st respondent herein. Feeling aggrieved, the petitioner filed an appeal before the 2nd respondent. The said appeal was rejected by the 2nd respondent on 07.11.2000. The said orders were questioned in W.P.No.35806/2000(SC/ST). By an order dated 06.02.2003, as at Annexure-D, the writ petition was allowed, the impugned orders were set aside and the matter was remitted to Assistant Commissioner to hold a fresh enquiry in accordance with law, in the light of the observations made in the order, leaving open all the contentions raised by the parties. 3. The 3rd respondent having considered the matter in his own way, held that the land in question was a granted land for an upset price at Rs.15/-per acre and hence, the provisions of the Act are not applicable to the transactions concerning to the land in question and as a result ordered for dropping of all further proceedings in the matter. Felling aggrieved, the grantee/1st respondent herein filed an appeal under S.5-A of the Act before the 2nd respondent. Upon consideration of rival contentions and appreciation of record of the case, the 2nd respondent by an order dated 14.05.2007, as at Annexure-A, allowed the appeal and held that the sale deed dated 23.05.1973 executed by the grantee/1st respondent in favour of Hanumanthappa and the subsequent sale deed in favour of the petitioner herein on 10.10.1977 in respect of the land in question as null and void and the Assistant Commissioner was directed to take further steps for restoration of the land in question to the grantee, as provided under S.39 of the Karnataka Land Revenue Act, 1964. Feeling aggrieved by the said order, the petitioner/purchaser has filed this writ petition. 4. Sri M. Narayana Reddy, learned advocate for the petitioner contended that the finding recorded by the 2nd respondent to the effect that the amount at Rs.15/- per acre cannot be accepted as full market value and consequently the provisions of the Act are applicable to the land in question is perverse and illegal. He submitted that the 3rd respondent having recorded correct finding of fact in the order as at Annexure-E, more particularly with reference to the sale deeds of the adjoining Village, the 2nd respondent - Appellate Authority is unjustified in allowing the appeal vide the order as at Annexure-A and that the same being perverse and illegal is unsustainable. 5. Sri Prakash T. Hebbar, learned advocate appearing for the 1st respondent, on the other hand contended that the 1st respondent belongs to Schedule Tribe community and he having applied for a grant, the land in question was granted at a nominal price of Rs.15/-per acre and with a stipulation that the same is not alienable for a period of 15 years and the property having been alienated within the prohibited period in favour of Hanumanthappa on 23.05.1973, from whom the petitioner has purchased on 10.10.1977, the 2nd respondent is justified in declaring the said sale transactions as null and void, being in contravention of the terms of the grant as well as the rules relating to the grant. Learned Counsel submitted that, even otherwise, the land in question being a granted land and since within the prohibited period, alienation had taken place, in view of the well settled position of law by catena of decisions of the Apex Court and this Court, the impugned order does not warrant any interference. 6. Sri M.G. Anjanamurthy, learned HCGP appearing for the respondent Nos.2 and 3, by taking me through the order passed by the 2nd respondent, as at Annexure-A made submissions in support of the finding recorded therein and sought dismissal of writ petition. 7. Indisputably, the land in question was granted by the Government in favour of 1st respondent on 23.03.1962, with a condition that the said land should not be alienated for a period of 15 years. The grant certificate is at Annexure-E. Clause 7 of the grant certificate makes it clear, that the grant was made subject to the provisions of the Land Revenue Code and Rules made thereunder, which were in force as on the date. Sri M. Narayana Reddy, does not dispute the fact that on the date the land in question was granted in favour of the 1st respondent, there was a prohibition of 15 years for alienation of the granted land. The fact that the transfer made by the 1st respondent in favour of Hanumanthappa on 23.05.1973 is in breach of the said condition of the grant is apparent. The petitioner purchased the granted land from the first purchaser Sri Hanumanthappa on 10.10.1977. Under S.4(1) of the Act that the transfer was void and comes within the purview of the provision. S.4(1) of the Act declares that, notwithstanding anything in any law, agreement, contract or instrument, any transfer of granted land made in breach of terms of the land shall be void. It necessarily declares that the transfer made in breach of law relating to the grant shall also be void. In this case, the transfer in favour of Hanumanthappa on 23.05.1973 being in breach of the condition incorporated in the grant certificate as per Annexure-F, it can be said to be void, as transfer has been made within the 15 years period. In this case, the transfer in favour of Hanumanthappa on 23.05.1973 being in breach of the condition incorporated in the grant certificate as per Annexure-F, it can be said to be void, as transfer has been made within the 15 years period. Even, if it is taken that the grant made in favour of the 1st respondent is for upset price, the alienation by the 1st respondent in favour of Hanumanthappa being within the prohibited period, as provided under the Rules in force as on the date of the grant vide at Annexure-F, the provisions of the Act are attracted and that the finding recorded by the 2nd respondent in the order as at Annexure-A that the sale by the grantee is null and void cannot be said to be bad either on facts or in law. 8. In the case of Siddegowda Vs. Assistant Commissioner and others, (2003) 10 SCC 675 , one Nanjaiah alias Gungaiah was granted 1 acre 20 guntas of land under the Mysore Land Revenue Code, 1888 for a sum of Rs.750/-. The allotted land was purchased by Siddegowda on 10.9.1968. A notice having been issued under S.4 of the Karnataka State (Prohibition of Transfer of Certain Lands) Act, 1978 (for short, the Act), to the appellant alleging that the sale in his favour by the predecessor-in-interest of respondents 3-A to E was violative of the provisions of the Karnataka Act 2/1979 and the land was to be resumed and possession was to be given back to the respondents, the appellant filed objections and the Assistant Commissioner by an order dated 26.3.1990 declared the sale transaction as null and void and ordered resumption of land. An appeal, writ petition and writ appeal filed by Siddegowda having been dismissed, Special Leave Petition was filed before the Apex Court, contending that the land granted to Gungaiah was for an upset price fixed as per the Rules and the upset price being equivalent to market value of the land, the prohibition against alienating of the property, envisaged under Rule 43-G of the Mysore Land Revenue Code is not applicable and it was further contended that in the "sagu vali chit" issued to the grantee, there was no specific clause prohibiting alienation of the land to any other party and therefore the sale made by the grantee in favour of the appellant was perfectly valid and S.4 of the Act has no application. After noticing that the grant made to Gungaiah was under Rule 43-C of the Mysore Land Revenue Code and under such circumstances, the prohibition prescribed under Rule 43-G would apply, Apex Court has been held as follows:- "5. Therefore, the crucial question is whether the grant in favour of Gungaiah was for the full market value or for any price lesser than that. The argument of the appellant's counsel is that upset price was fixed at Rs.500 per acre and that clearly reflected the full market value of the land. Our attention was also drawn to Rule 43(2) of the Mysore Land Revenue Code, 1940 describing the mode in which the upset price shall be fixed. It says that : "The 'upset price' shall not be arbitrarily fixed but shall represent the actual market value of the land, as nearly as it can be ascertained by local enquires and the examination of records of sales of similarly lands in the neighbourhood, and if necessary, of the registration statistics relating to them". 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. There are no materials priced before us to show that Rs.500/- fixed by the authorities was equivalent to the market value for this 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 priced 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. In Guntaiah and others Vs. Hambamma and others, (2005) 6 SCC 228 , Apex Court has held that in view of the clear language employed in S.4 of the Act, according to which any transfer of granted land made either before or after the commencement of this Act, 'in contravention of the terms of the grant of such land' shall be null and void and that the violation of the terms of grant itself gives rise to the action under S.4 read with S. 5. So long as the terms of the grant prohibiting transfer are not opposed to any specific provision of law, they cannot be violated and the transferee gets no rights by virtue of such invalid transfer, which is the sum and substance of S.4 of the Act. 10. In the instant case, the subject land was granted in favour of the 1st respondent on 23.3.1962 with a condition that the granted land should not be alienated for a period of 15 years. 10. In the instant case, the subject land was granted in favour of the 1st respondent on 23.3.1962 with a condition that the granted land should not be alienated for a period of 15 years. The vendor of the petitioner purchased the granted land on 23.5.1973. In view of the statement of law by the Apex Court in the two decisions noticed supra, the provisions of Ss.4 and 5 having been attracted, the purchase by the vendor of the petitioner and later on by the petitioner, being opposed to the conditions of grant, the 2nd respondent is justified in passing the order as at Annexure-A. The impugned order does not suffer from any infirmity and hence, does not warrant any interference. In the result, the petition being devoid of merit is dismissed with no order as to costs.