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2014 DIGILAW 516 (KAR)

T. Nagaraj v. State of Karnataka

2014-05-13

N.K.PATIL, PRADEEP D.WAINGANKAR

body2014
Judgment 1. This Writ Appeal is filed by the appellants questioning the validity and correctness of the order dated 23.06.2011 passed by the learned Single Judge in Writ Petition No.5370/2008. 2. Brief facts which gave rise to this Writ Appeal are as under: The land bearing old Sy.No.38, New Sy.No.208, measuring 22 acres of Nagaramgere Village, Kasaba Hobli, Challakere Taluk, Chitradurga District was granted to one Polaga alias Polanna, S/o Maranna by the Government under Grow More Food Scheme in 1943 on lease for a period of 10 years being a member of Scheduled Caste. The grant was confirmed by order dated 13.10.1952 by the Deputy Commissioner, Chitradurga vide D.Dis.M4.Spl.DR.No.34/52-53. Vide R.R.No.941 it was mutated in the name of Polaga in revenue records. On 05.03.1963, 11 acres of land out of 22 acres was transferred into the name of one Thippaiah alias Doddathippaiah S/o Honnurappa, the father of the appellant by 'Vargavargi'. Accordingly, vide R.R.No.1260, the name of Doddathippaiah was mutated in the revenue records for an area of 11 acres out of 22 acres in the aforesaid survey number. It appears that another 3 acres of land had been transferred by the wife of Polaga in favour of one Dhyamappa-respondent No.7, who in turn sold a part of it to the respondent No.8-A.S. Thippeswamy. After the death of Polaga, his wife and children who are respondent Nos.4 to 6 filed an application before the respondent No.3-Assistant Commissioner, Chitradurga District for cancellation of alienation of 11 acres of land in favour of Doddathippaiah. The Assistant Commissioner by his order dated 26.03.2003 in SC.PTCL (A) 8/2003-04 dismissed the application filed by the wife and children of original grantee Polaga. Aggrieved by the order passed by the Assistant Commissioner, the wife and children of deceased-Polaga preferred an appeal before the Deputy Commissioner, who inturn by his order No. SC.PTCL (A) 8/2003-04 dated 12.03.2008 allowed the appeal while setting aside the order passed by the Assistant Commissioner. Aggrieved by the order passed by the Deputy Commissioner, the children and wife of Doddathippaiah preferred Writ Petition No.5370/2008 before the learned Single Judge. Upon merits, the learned Single Judge dismissed the Writ Petition by order dated 23.06.2011. 3. Aggrieved by the order passed by the Deputy Commissioner, the children and wife of Doddathippaiah preferred Writ Petition No.5370/2008 before the learned Single Judge. Upon merits, the learned Single Judge dismissed the Writ Petition by order dated 23.06.2011. 3. Questioning the validity and correctness of the order passed by the learned Single Judge in Writ Petition, this appeal is filed on the ground that 'Vargavargi' is not a mode of transfer as under the Transfer of Property Act that the provisions of Section 4(1) of the Karnataka Scheduled Caste and Scheduled Tribe (Prohibition of Transfer of Certain Lands) Act, 1978 are not at all attracted to the transactions in question and that both Polaga and Doddathippaiah are belongs to the Scheduled Caste and as such, the transfer is not hit by the Section 4(1) of the Act. 4. We have heard the learned counsel appearing for the appellants, learned counsel for contesting respondent Nos.4 to 6 and learned Government Advocate for respondent Nos.1 to 3. Perused the records and the impugned order passed by the learned Single Judge. 5. The learned counsel appearing for the appellant would submit that 'Vargavargi' is not a mode of transfer as recognised under the Transfer of Property Act, that the provisions of Section 4(1) of the Karnataka Scheduled Caste and Scheduled Tribe (Prohibition of Transfer of Certain Lands) Act, 1978 are not at all attracted to the transactions in question and that both Polaga and Doddathippaiah belonged to the Scheduled Caste and as such, the transfer is not hit by Section 4(1) of the Act. For all these reasons, the learned counsel sought to set aside the impugned order passed by the learned Single Judge. 6. Per contra, the learned counsel for the contesting respondent Nos.4 to 6 has argued in support of the orders passed by the Deputy Commissioner and the learned Single Judge and sought for dismissal of the appeal. 7. For all these reasons, the learned counsel sought to set aside the impugned order passed by the learned Single Judge. 6. Per contra, the learned counsel for the contesting respondent Nos.4 to 6 has argued in support of the orders passed by the Deputy Commissioner and the learned Single Judge and sought for dismissal of the appeal. 7. Upon hearing the submissions made by the both the learned counsel appearing for the appellants and the respondent Nos.4 to 6 and the Government Advocate and upon perusal of the entire material placed on record, the undisputed facts are that the Government granted 22 acres of land in old Sy.No.38, New Sy.No.208, of Nagaramgere Village, Kasaba Hobli, Challakere Taluk, Chitradurga District to one Polaga alias Polanna, S/o Maranna on lease under Grow More Food Scheme in 1943 being a member of Scheduled Caste. It is also not in dispute that on 13.10.1952, the grant made has been confirmed by the Deputy Commissioner and thereby Polaga became the absolute owner of 22 acre of land and accordingly, his name had been mutated vide R.R.No.941. It is also not in dispute that out of 22 acres of land, 11 acres of land was transferred by Polaga in the name of Thippaiah alias Doddathippaiah, S/o Honnurappa, the father of appellant Nos.1 and 2 and the husband of appellant No.3 on 05.03.1963 and accordingly, the said 11 acres of land came to be entered in the name of Doddathippaiah in revenue records vide R.R.No.1260. The mutation entry reveals that 11 acres of land has been transferred by 'Vargavargi', the mode which is not recognised under the Transfer of Property Act. 'Vargavargi' is also not an exchange. It appears, it is a new term coined by the parties to get over the provisions of the Act, which prohibits the transfer of the land in favour of third person permanently. Since 'Vargavargi' is a mode unknown to the Transfer of Property Act, the transfer made by Polaga in favour of Doddathippaiah by the said mode i.e, 'Vargavargi' is no transfer in as much as, it will not confer the right, title, interest in favour of Doddathippaiah. Even, if it is presumed for a while that 'Vargavargi' is a mode of transfer, that will not improve the situation since the transfer or alienation by any mode such as sale, gift etc., is prohibited under Section 4(1) of the Act. Even, if it is presumed for a while that 'Vargavargi' is a mode of transfer, that will not improve the situation since the transfer or alienation by any mode such as sale, gift etc., is prohibited under Section 4(1) of the Act. When such being the case and when it has been brought to the notice of the Assistant Commissioner by filing an application for cancellation of the entries made in the name of Doddathippiaah and his legal representatives, the Assistant Commissioner ought to have allowed the application and cancelled the name of so called purchaser. Instead of doing so, the Assistant commissioner dismissed the application. But, the Deputy Commissioner in an appeal preferred against the order passed by the Assistant Commissioner has rightly allowed the appeal and set aside the order passed by Assistant Commissioner. The Writ Petition No.5370/2008 filed against the order passed by Deputy Commissioner also came to be dismissed by the learned Single Judge. The learned Single Judge has assigned the reasons in para Nos. 15 and 16 of the order, which reads as under: "15. Insofar as the contention of Siddagangaiah, learned counsel that it is not a "transfer" it is a phrase within the meaning of Section 3 (1)(e) of the Act reads as under:- "transfer" means a sale, gift, exchange, mortgage (with or without possession), lease or any other transaction not being a partition among members of a family or a testamentary disposition and includes the creation of a charge or an agreement to sell, exchange, mortgage or lease or enter into any other transaction." Submission of Sri Siddagangaiah does not merit acceptance for the reason that what transactions are taken out by the definition of "transfer" under Section 3(1)(e) of the Act are only transactions in the nature of a partition amongst members of a family or a testamentary disposition and includes the creation of a charge and which are the only exceptions but all other types of transactions by whatever name called are all roped in within the meaning of the word 'transfer' particularly, by the use of the phrase any other transaction towards the end of Section 3(1)(e) of the Act. There is no dispute nor is it the version of the petitioners that the 'vargavargi' nature of transaction is in the nature of a family partition or a settlement or a disposition through any Will etc. There is no dispute nor is it the version of the petitioners that the 'vargavargi' nature of transaction is in the nature of a family partition or a settlement or a disposition through any Will etc. On the other hand, the Deputy Commissioner records a finding that it is a sale by vargavargi transaction. Even assuming for arguments sake it may not be precisely a sale within the meaning of the word as it occurs either in the Transfer of Property Act or in the Sale of Goods Act, even otherwise, the transaction is within the meaning of the word "Transfer" and Section 3(1)(e) of the Act being not a transaction in the nature of a partition of testamentary disposition or other settlement amongst the members of a family. Therefore, the vargavargi transaction even when the nature of the transaction may not be very precise or clear, but nevertheless being a transaction within the meaning of the word 'Transfer' and the Rules in terms of Rule 43 framed under the Code which govern grants during the relevant period in terms of Rule 43(8), carrying a statutory condition which imposes a permanent non-alienation condition. 16. There it is to be held that even a transaction in the nature of vargavargi of the year 1963 is one, which inevitably attracts the provisions of Section 4(1) of the Act and all further transactions thereafter also fall to ground for the very reason." 8. Merely because Doddathippaiah also belonged to Scheduled Caste cannot be a ground to reject an application filed by the wife and children of Polaga before Assistant Commissioner for cancellation of mutation entry made in favour of Doddathippaiah in respect of 11 acres of land said to have been transferred by Polaga by 'Vargavargi' in the name of Doddathippaiah. It is needless to say that the land was granted to Polaga by the Government with a definite purpose, as he belonged to Scheduled Caste and not for transfer of the land by the grantee in favour of a stranger so as to defeat the very purpose of the Act. Upon going through the order passed by the learned Single Judge and the other material paced on record, we do not find any error committed by the learned Single Judge. There is no merit in this appeal. Hence, we pass the following order. Appeal is dismissed. Upon going through the order passed by the learned Single Judge and the other material paced on record, we do not find any error committed by the learned Single Judge. There is no merit in this appeal. Hence, we pass the following order. Appeal is dismissed. In view of disposal of the appeal, I.A.No.4/2012 for additional documents does not survive for consideration. Hence, the same is disposed of.