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2015 DIGILAW 1157 (KAR)

D. v. Narayanappa VS State of Karnataka

2015-10-05

B.S.PATIL

body2015
ORDER : B.S. Patil, J. 1. Learned Additional Government Advocate is directed to take notice for respondents 1 to 3. In these writ petitions, petitioners are challenging the order passed under Section 5-A(1-A) of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 (for short, 'the Act') by the Deputy Commissioner, Bangalore District on 27-1-2014 thereby dismissing the appeal filed by the petitioners against the order passed by the Assistant Commissioner, Bangalore North Sub-Division, Bangalore on 8-9-2011. 2. Petitioners claim to be the legal representatives of the original grantee by name Muniya alias Muniga. Land bearing Sy. No. 96, New No. 118/1 measuring 3 acres 1 gunta of Bommenahalli Village, Bidarahalli Hobli, Hoskote Taluk was granted in favour of Muniya alias Muniga on 7-9-1928. The grantee died. Upon his death, his sons sold the property in question to the father of respondents 4 and 5 on 26-6-1950. Respondents 4 and 5 along with their father, Sri Thotadaiah have in turn sold the property in question to respondents 6 and 7 as per the registered sale deed dated 17-6-2003. 3. During the year 2010, petitioners claiming to be the grandchildren of Late Muniya have moved the Assistant Commissioner seeking resumption of the land to the Government and restoration of the same to the grantee/his legal representatives contending inter alia that the first alienation made on 26-6-1950 was void as it was in violation of the relevant rules imposing prohibition for alienation. 4. The Assistant Commissioner has passed an order dated 8-9-2011 dismissing the application filed by the petitioners holding that as on the date of grant, there was no rule framed by the State Government imposing any restriction of alienation of the granted land and in the absence of any other rules regulating the conditions of grant, even the Government order dated 12-9-1929 could not have placed any restriction on alienation of such land. The Assistant Commissioner has placed reliance on the judgment of the Division Bench of this Court in the case of Mariyappa v. Dr. N. Thimmarayappa and Others 2004 (5) Kar. The Assistant Commissioner has placed reliance on the judgment of the Division Bench of this Court in the case of Mariyappa v. Dr. N. Thimmarayappa and Others 2004 (5) Kar. L.J. 255 (DB), 2004 (3) KCCR 1471 (DB) to hold that the restriction that could be imposed restraining alienations had to be authorised by the Rules as provided under Section 36 of the Mysore Land Revenue Code and in the absence of any other Rule, no reliance could be placed on the Government order dated 12-9-1929 to impose any restriction and hence, the sale was not hit by Section 4 of the Act. The Assistant Commissioner has further found that in the case on hand, the land was granted during the year 1928 and for the first time it was sold during the year 1950 that too after a lapse of 10 years of non-alienation condition that was imposed in the year of grant and hence, applying the principle laid down in the Division Bench judgment it had to be held that the claim made by the petitioners seeking resumption of the land for the alleged violation of the conditions of grant was untenable. 5. This order was challenged in appeal before the Deputy Commissioner. The Deputy Commissioner by his order dated 27-1-2014 has confirmed the order of the Assistant Commissioner by again placing reliance on the judgment of this Court in Mariyappa's case and other cases. 6. Learned Counsel appearing for the petitioners contends that in terms of the judgment in the case of State of Uttar Pradesh v. Zahoor Ahmad and Another, AIR 1973 SC 2520 , (1973) 2 SCC 547 , Sections 2 and 3 of the Government Grants Act, 1895 would prevail over the provisions of the Transfer of Property Act, 1882 and therefore, any grant of Government land as per the Government Grants Act shall be construed to take effect as if the Transfer of Property Act did not apply. This decision has no application to the facts of the present case. We are not concerned with the application of Transfer of Property Act. This decision has no application to the facts of the present case. We are not concerned with the application of Transfer of Property Act. The Assistant Commissioner and the Deputy Commissioner have concurrently held that even assuming that the condition imposed in the order of grant has to be given effect to, alienation made in the year 1950 would be after a period of 22 years beyond the restricted period of 10 years and hence, the first sale made was not in any manner in violation of the condition imposed in the order of grant. 7. Though the learned Counsel for the petitioners has placed reliance on the other Division Bench judgment of this Court in W.A. No. 807 of 1987, in the case of Smt. Ammanamma v. Venkataiah alias Puttaiah and Others, on careful perusal of the said judgment it has no connection whatsoever for the issue raised in the present case and similarly, the order of this Court passed in W.P. Nos. 5516 to 5520 of 1979 in the case of Krishnappa S.V. and Others v. State of Karnataka and Others, wherein it has been held that Sections 4 and 5 of the Act are not violative of Articles 14, 19(1)(f) and 31 or 31-A of the Constitution of India, has also no application to the facts of the present case. As both the Authorities have rightly held that there was no violation of any existing rule nor there is any violation of the conditions of grant, I do not find any merit in these writ petitions. Writ petitions are, therefore, dismissed. Learned Additional Government Advocate is permitted to file memo of appearance for respondents 1 to 3 within three weeks.