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2015 DIGILAW 85 (KAR)

Shahanaz Begum v. State of Karnataka

2015-01-14

L NARAYANA SWAMY

body2015
ORDER 1. These writ petitions are filed by the petitioner being aggrieved of the orders passed by the Assistant Commissioner, Gulbarga dated 30th September 2009 allowing the application for resumption and restoring the land in favour of the party respondent, which is confirmed by the Deputy Commissioner, Gulbarga by the order dated 23rd August 2011. 2. The facts of the case to be stated in brief are husband of the 4th respondent was granted 300 acres of land in Sy.No.442/2/1 of Yadrami village, Jevargi Taluk by the Assistant Commissioner vide order dated 3rd August 1981 in No.83/1981-82. The said land came to be sold vide Document No.80/199798 dated 26th April 1997 without prior permission from the Government thereby violating the provisions of Section 4(2) of Karnataka Scheduled Castes & Scheduled Tribes (Prevention of Transfer of Certain Lands) Act, 1978, (hereinafter referred to as `the Act’ for short). 3. The learned counsel for the petitioner submits that the Assistant Commissioner did not find whether the grant was for an upset price or not, the action initiated is after lapse of more than 10 years, which is unreasonable violative of Article 14 of the Constitution of India, the sale effected on 26th April 1997 is beyond the period of 15 years of nonalienation clause, and therefore, provisions of Sections 4 & 5 of the Act are not applicable. He further submits that Sri Kashinath, who has been sold portion of the land by the petitioner, has not been made a party nor heard in the matter, and therefore, the impugned orders are not sustainable. Lastly, the learned counsel submits that the vendor of the petitioner has sold the land for his family and legal necessities for a valuable consideration and he was not misled by the petitioner. 4. The learned High Court Government Pleader and the learned counsel for Respondent No.4 support the impugned orders and pray for dismissal of the writ petition. 5. The admitted facts in the case are that the land was granted in favour of husband of the 4th respondent with a nonalienation clause for a period of fifteen years, which is sold by the grantee in favour of the petitioner. Even if the land is to be alienated after fifteen years, the prior permission of the Government is to be obtained. Even if the land is to be alienated after fifteen years, the prior permission of the Government is to be obtained. In this connection it is necessary to refer to Section 4 of the Act, which reads as follows: “4. Prohibition of transfer of granted lands: (1) Notwithstanding anything in any law, agreement, contract or instrument, 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 or the law providing for such grant, or sub-Section (2) shall be null and void and no right, title or interest in such land shall be conveyed or be deemed ever to have conveyed by such transfer. (2) No person shall, after the commencement of this Act, transfer or acquire by transfer any granted land without the previous permission of the Government. (3) The provisions of sub-Sections (1) and (2) shall apply also to the sale of any land in execution of a decree or order of a Civil Court or of any award or order of any other authority.” Therefore, it is the obligation not only on the seller but also the purchaser to obtain prior permission of the Government in selling and acquiring the granted land. In the instant case, the land having been admittedly purchased without prior permission of the Government is null and void and no right, title or interest is conveyed or be deemed ever to have conveyed by such transfer. 6. To consider the contentions of the counsel for the petitioner that there is a nonalienation clause for a period of 15 years and therefore it can be presumed that grant is for an upset price. Non-mentioning of the same in the impugned order of the Assistant Commissioner does not render the impugned order unsustainable. 7. In respect of the contention of the petitioner that the authorities have initiated the proceedings belatedly, the learned counsel has placed reliance on the decisions IN BANGALORE DEVELOPMENT AUTHORITY v. SUMITRADEVI reported in ILR(KAR) 2005 01386; SITU SAHU v. STATE OF JHARKHAND, reported in 2004LAWS(SC)983; SANTOSHKUMAR SHIVGONDA PATIL v. BALASAHEB TUKARAM SHEVALE reported in LAWS(SC)2009985; and in IBRAHIMPATNAM TALUK VYAVASAYA COOLIE SANGAM v. K SURESH REDDY reported in LAWS(SC)2003 8128. None of the decisions are rendered in the matter relating to the proceedings under the Act. None of the decisions are rendered in the matter relating to the proceedings under the Act. It is true that the authority initiating action has to exercise power within a reasonable time. But that reasonable time differs from case to case and the enactment under which the relief is sought for. Here is a case where the land granted to the underprivileged person is purchased without the prior permission of the Government. The provisions of the Act not only stipulate resumption and restoration in favour of the grantee or his legal heirs, but also resumption and allotment of such land in favour of persons belonging to scheduled castes and scheduled tribes. Therefore, the intention of the legislation is to ensure that granted land shall enure to the benefit of the persons belonging to depressed class. In that view of the matter, the delay in such matters has to be construed liberally and on that ground relief cannot be denied to the applicants under the Act. 8. As already stated above, the first sale in favour of the petitioner itself is held to be null and void, and therefore, the question of impleading the purchaser of the petitioner and hearing him does not arise. Order dated 30th September 2009 passed by the Assistant Commissioner, Gulbarga which is confirmed by the Deputy Commissioner, Gulbarga by the order dated 23rd August 2011 are confirmed. 9. In the circumstance, none of the contentions raised by the petitioner have any substance and the writ petitions are devoid of any merits, liable to be dismissed and are accordingly dismissed.