Research › Search › Judgment

Karnataka High Court · body

2021 DIGILAW 566 (KAR)

Nanjamma v. State of Karnataka

2021-04-17

R.DEVDAS

body2021
JUDGMENT : R. Devdas, J. The petitioner, a purchaser of the land in question is before this Court, aggrieved by the order dated 30.11.2018 passed by the 2nd respondent-Deputy Commissioner, who set aside the order passed by 3rd respondent-Assistant Commissioner and directed resumption and restoration of the land in favour of the legal representatives of the original grantee Smt.Venkatamma. 2. The petitioner herein purchased two acres and two guntas of land in Sy.No.153/5, situated at Herohalli Village, Yeshwanthpura Hobli, Bengaluru North Taluk. Respondent No.4- Sri.Ramaiah filed an application before the 3rd respondent- Assistant Commissioner seeking a declaration that the sale deed dated 13.12.2006 wherein two acres and two guntas of land out of 3 acres and 3 guntas of land which was sold in favour of the petitioner herein is null and void since originally the land was granted in favour of Smt. Venkatamma who belonged to Scheduled Tribe Community and the sale deed is in contravention of Section 4(2) of the Karnataka Scheduled Castes/ Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978, (herein after referred to as 'the Act' for short), there being no previous permission obtained from the State Government before the land could be transferred. The 3rd respondent-Assistant Commissioner, on perusing a copy of the grant certificate which was produced by the petitioner herein, came to a conclusion that although the grant was made under the Darkhast Rules, on 29.05.1926 and grant certificate was issued on 06.06.1926, about 23 acres of 13 guntas of land in various Survey numbers of Herohalli Village were put to public auction since the said lands were resumed by the government for non-payment of tax, in terms of Darkhast Rules. The Assistant Commissioner proceeded to hold that the lands were auctioned for market value and therefore, the land cannot be considered as a granted land. 3. Respondent No.4 herein approached the Spl. Deputy Commissioner by filing an appeal under Section 5A of the Act. The Deputy Commissioner noticed that the applicant has produced copies of caste certificate, IL, RR, Register Extract, Preliminary record, RTC, showing the name of the appellant, along with Mutation Register Extract, Genealogical Tree, Original Survey Tippani and Re-survey Tippani, Hissa Survey Tippani, IL copy, etc. Deputy Commissioner by filing an appeal under Section 5A of the Act. The Deputy Commissioner noticed that the applicant has produced copies of caste certificate, IL, RR, Register Extract, Preliminary record, RTC, showing the name of the appellant, along with Mutation Register Extract, Genealogical Tree, Original Survey Tippani and Re-survey Tippani, Hissa Survey Tippani, IL copy, etc. The Deputy Commissioner held that the Assistant Commissioner was required to hold a formal enquiry in the manner laid down in Section 33 of the Karnataka Land Revenue Act, 1964 but no formal enquiry was held. While citing some decisions of this Court, the Deputy Commissioner held that the burden to prove that, grant was for an upset price or for reduced upset price was on the purchaser of the land and when the purchaser failed to plead and discharge his burden before the Authority, he cannot be permitted to raise an issue before the Appellate Authority. Further the Deputy Commissioner holds that since admittedly no prior permission was taken by the purchaser or the legal heirs of the original grantee before transferring the rights with respect to the granted lands, in terms of Section 4(2) of the Act, there is a clear violation of Section 4(2) of the Act and therefore, the Deputy Commissioner proceeded to set aside the order of the Assistant Commissioner. Consequently, the Deputy Commissioner directed resumption and restoration of the land in favour of the legal heirs of the original grantee. Being aggrieved, the purchaser/petitioner is before this Court. 4. Sri. B. S. Raghuprasad, learned counsel appearing for the petitioner places reliance on a decision of Apex Court in the case of B.K. MUNIRAJU VS. STATE OF KARNATAKA, (2008) AIR SC 14383, to contend that the Authorities were required to look into the records and find out whether the grant was infact a grant or a sale made under public auction for a price. It was submitted that the Hon'ble Supreme Court has held that merely because the documents is styled as "Grant Certificate", that itself will not be a deciding factor that the land is a granted land. The authorities are required to find out the terms of the grant and as to whether the land was auctioned for market value. The learned counsel also places reliance on the following decisions SMT.DHANALAKSHMI VS. STATE OF KARNATAKA AND OTHERS, 2020 (3) KCCR 1882, SHIVAPPA VS. The authorities are required to find out the terms of the grant and as to whether the land was auctioned for market value. The learned counsel also places reliance on the following decisions SMT.DHANALAKSHMI VS. STATE OF KARNATAKA AND OTHERS, 2020 (3) KCCR 1882, SHIVAPPA VS. SAKAMMA AND OTHERS, , ARAKKANETIL OMEN IYPE VS. THE STATE OF KARNATAKA AND OTHERS, POOJAMMA AND OTHERS VS. THE ASSISTANT COMMISSIONER AND OTHERS, , T.A.DARMALINGAM VS. THE STATE OF KARNATAKA AND OTHERS 5. Learned counsel for the petitioner would further contend that contrary to the finding given by the Deputy Commissioner, the burden would lie on the applicant before the Assistant Commissioner to produce the required documents, including the grant certificate to substantiate his contention that the land was in fact a granted land. 6. Per contra, the learned counsel for the private respondents would contend that a copy of the grant certificate which was produced by the petitioner herein before the Assistant Commissioner was in fact a concocted document. In this regard a police complaint was given by the private respondents and the police have registered an FIR and consequently, after investigation a chargesheet also has been filed against the petitioner. The learned counsel for the private respondents would therefore contend that when the grant certificate produced by the petitioner herein is opposed on the ground that it is a concocted document, the Assistant Commissioner could not have proceeded to hold that the land was infact purchased in an auction by paying the market value and therefore, the grant infact is not a grant but an auction sale. Moreover, it is contended that the Deputy Commissioner was right while holding that at any rate a land that was granted in favour of a person belonging to Scheduled Caste/ Scheduled Tribe category could not have been transferred after the commencement of the Act, without prior permission of the State Government in terms of Section 4(2) of the Act. When admittedly no prior permission was taken as mandated under Section 4(2) of the Act, the Deputy Commissioner is right in coming to a conclusion that the sale transaction is void ab initio. 7. Heard the learned counsels and perused the petition papers. 8. On the question of production of the grant certificate and other supporting documents, this Court has time and again held that the Authorities cannot insist on production of the original grant certificate. 7. Heard the learned counsels and perused the petition papers. 8. On the question of production of the grant certificate and other supporting documents, this Court has time and again held that the Authorities cannot insist on production of the original grant certificate. This is because in the normal transaction, the title deed is passed on to the purchaser and when the purchaser is holding the title deeds, it would be absurd to call upon the transferee to produce the original title deeds. Moreover, it has also been held that the Authorities being the custodian of the revenue documents, they are duty bound to call for the records from the office of the concerned Tahsildar and verify the factum of possession of the property and whether the revenue records would reflect the fact that the person who had sold the property had title over the lands and his name was entered in the revenue records and he was paying the property tax. These are contemporaneous records which would only assist the fact finding Authority to verify the averments made by the applicant before the Authority, before coming to a conclusion that the transferor had a title on the land in question. 9. The Hon'ble Supreme court in the case of the GUNTAIAH AND OTHERS VS. HAMBAMMA AND OTHERS, (2005) 6 SCC 228 , while analyzing the question as to whether the land which was initially given on temporary lease under the provisions of the Karnataka Land Revenue (Amendment) Rules, 1960, under Rule 43J of the Rules and thereafter, granted permanently with a restriction that the grantees shall not alienate the lands for a period of fifteen years, whether such a restriction could be placed and whether sale of such lands could be considered as a violation of the conditions of grant, held, while setting aside a full Bench decision of this Court that the government being paramount title holder is empowered to impose any condition which is not against the law and it is binding on the grantee. It was held that all such grants were made under the general provisions of the Rules and Rule 43J by itself is not a provision by which grants are made. It was held that all such grants were made under the general provisions of the Rules and Rule 43J by itself is not a provision by which grants are made. All the general provisions of the Rules would be made applicable to such grant if the grant is made at a price lesser than the market price or is made free of costs. However, it was also held that the High Court failed to take into account the clear language employed in Section 4, 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 (emphasis supplied). The violation of the terms of the grant itself gives rise to the action under Section 4 read with Section 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. It was held that this is the sum and substance of Section 4 which has not been duly considered by the High court. Further it was held that the prohibition regarding alienation is a restrictive command binding on the grantee. It was held that in all these proceedings, challenge is made by the third party who purchased the land from the grantee. The third party is not entitled to say that the conditions imposed by the grantor to the grantee were void. As far as the contract of sale is concerned, it was entered into between the government and the grantee and at that time the third party purchaser had no interest in such transaction. It was held that although the purchaser is entitled to challenge the violation of any statutory provisions but if the grant by itself specifically says that there shall not be any alienation by the grantees for the particular period, that is binding on the grantee so along as he does not challenge that Clause, more so when the purchaser, purchased the land in spite of he being aware of the conditions. 10. 10. The Hon'ble Supreme Court proceeded to hold that the conditions restricting alienation imposed by the Authorities are legally valid and the finding of the full Bench to the contrary is not correct and the impugned judgment was therefore, not sustainable in law. 11. What is important to be noticed in this case is that this is a case falling under Section 4(2) of the Act and not Section 4(1). When the petitioner herein wanted to purchase the land from the private respondents herein, he has gone through the title deeds. Petitioner was aware that the 4th respondent herein was claiming under the original grantee Smt.Venkatamma in whose favour grant certificate was issued. The petitioner was aware that the grant certificate was issued under the Darkhast Rules, that being the position, the petitioner should have been aware that he was dealing with a land standing in the name of a person belonging to Scheduled Tribe category. Section 4(2) of the Act mandates that no land granted in favour of a person belonging to Scheduled Caste/Scheduled Tribe category shall be transferred without prior permission of the State Government. The decision in B.K.MUNIRAJU'S case which is relied upon by the learned counsel for the petitioner deals with a case falling under Section 4(1) of the Act and not 4(2) of the Act. 12. When the authorities are dealing with a case falling under Section 4(2) of the Act, all that they are required to verify is whether the title deed under which the original grantee or the legal heirs of the original grantee claiming under him/her is a document or a title deed granted under the relevant grant Rules. As held in the case of GUNTAIAH (Supra) all grants are made under the relevant grant Rules which were earlier known as Darkhast Rules. There can be no grant made by the State Government disposing of the Government lands other than under the provisions of the grant Rules holding the field. Therefore, even while an auction sale is conducted in terms of the relevant Rules, including the Karnataka Land Grant Rules, 1969 which is holding the field as of now, the certificate of title that is passed on to the purchaser/grantee is in accordance with the form prescribed in the Rules. 13. Therefore, even while an auction sale is conducted in terms of the relevant Rules, including the Karnataka Land Grant Rules, 1969 which is holding the field as of now, the certificate of title that is passed on to the purchaser/grantee is in accordance with the form prescribed in the Rules. 13. A careful consideration of the provisions of Section 4 of the Act makes it clear that what is prohibited is transfer of granted land made either before or after the commencement of the Act, in contravention of the terms of grant of such land or the law providing of such grant or sub Section (2). Such transfers shall be null and void and no right, title or interest in such land shall be conveyed or be deemed to have been conveyed by such transfer. Therefore, on a plain reading it is clear that the word "granted land" refers to any grant made under the law providing for such grant. Admittedly the basis on which the petitioner herein purchased the property from the 4th respondent and other persons claiming under the original grantee was the 'grant certificate' issued under the relevant Darkhast Rules. As noticed earlier this is a case falling under Section 4(2) of the Act and therefore, it was all the more incumbent upon the petitioner to have sought for prior permission of the State Government before transacting with such lands. When admittedly no prior permission has been taken either by 4th respondent or the petitioner herein before transferring the land, the sale transaction is definitely hit by Section 4(2) of the Act. 14. For the foregoing reasons, this Court is of the considered opinion that the decision of the Deputy Commissioner in coming to conclusion that the agreement dated 30.09.2006 and sale deed dated 13.12.2006 which was registered on 11.09.2009 is hit by the provisions of the Section 4(2) of the Act, cannot be found fault with, although the reasons for arriving at such a decision may vary from the one given by this Court. Consequently, the writ petition stands dismissed. 15. During the course of these proceedings respondent No.4 has filed certain additional documents including copy of the sale deed dated 02.12.2016 said to have been executed by the petitioner herein in favour of one Sri. Suresh seeking to transfer the property in question. Consequently, the writ petition stands dismissed. 15. During the course of these proceedings respondent No.4 has filed certain additional documents including copy of the sale deed dated 02.12.2016 said to have been executed by the petitioner herein in favour of one Sri. Suresh seeking to transfer the property in question. However, although the document was presented for registration, when the same came to the notice of the respondent No.4(a) the legal representative of original respondent No.4, he caused a notice to the concerned Sub- Registrar bringing to his notice the pendency of the litigation and consequently, the Sub-Registrar has issued notice dated 22.09.2020 to the executants of the document while keeping the document pending for registration. Therefore, the concerned Sub-Registrar shall take note of the orders passed by this Court and proceed in accordance with law. 16. It is ordered accordingly.