Karnataka High Court
Uppar Malleshappa vs State Of Karnataka And Ors. on 15 November, 2005
Equivalent citations: 2006 (1) AIR KAR R 608, (2006) 1 KCCR 98 (2007) 1 KANT LJ 160, (2007) 1 KANT LJ 160
Author: D.V. Shylendra Kumar
Bench: D.V. Shylendra Kumar
ORDER D.V. Shylendra Kumar, J.
1. Writ petition is by a purchaser of agricultural land measuring an extent of 0.54 acres of land in Sy. No. 62/B and also an extent of 0.85 acres of land in Sy. No. 63/B of Chikkajayeganur Village, Hospet Taluk, Bellary District, in terms of a sale deed dated 3-11-1976 claiming to have been executed by one Shiddalingappa.
2. Though the petitioner was in peaceful possession and enjoyment of this land the 4th respondent one Smt. Dasara Lingamma, W/o. Shivappa claiming to be a granddaughter of the original grantee had filed an application before the Assistant Commissioner in the year 2001 under the provisions of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 (for short, the 'Act') praying for invalidation of the present sale transaction and the earlier transactions on the premise that the original grant being one in favour of a person belonging to Scheduled Caste Community; that it had been imposed with a condition that the land should not be sold in favour of non-scheduled caste community persons for ever etc., and such a land having been sold by the legal heirs of the original grantee and presently the respondent in the application viz., the present writ petitioner being in possession and enjoyment of the land who had claimed such ownership and possession under the sale deed dated 3-11-1976 said to have been executed by the said Shiddalingappa the transactions are required to be invalidated and the land resumed to the State and restituted to the applicant as a legal heir of the original grantee.
3. This application had come to be registered as PTCL No. 27 of 2001-2002 before the Assistant Commissioner, Hospet. Respondent was put on notice and the respondent entered appearance through Counsel and also filed his objections to the application as also a written submission, copy of which is produced as Annexure-A to the present writ petition.
4. The present writ petitioner, who was the respondent in the proceedings before the Assistant Commissioner contested the proceedings inter alia contending that the original grant was not in favour of a person belonging to Scheduled Caste Community; that the applicant is not a legal heir of the original grantee; that the petitioner had purchased the land from one Shiddalingappa in the year 1976; that the land is not a granted land at all, but is a land which was in the ownership of his vendor and his forefathers generations together as an ancestral property and therefore, the application deserves to be dismissed. It was also urged that even the applicant does not belong to Scheduled Caste Community.
5. The Assistant Commissioner who made a farce of an enquiry in terms of his order dated 28-3-2003, copy at Annexure-B, dismissed the application holding that the records referred to by the applicant in No. 8A/53/1931, dated 22-4-1930; that the reference given by the applicant is one relating to certain mutation of the entries in the revenue records; that it was not possible to verify the nature of the grant from their records; that the applicant had not given the exact date of grant along with the grant order and it was not clear as to in whose favour the original grant was made; that such records were not readily available at his office also and therefore, he is unable to ascertain the conditions of the grant; that he is also unable to record as to whether the original grant was made in favour of a person belonging to Scheduled Caste Community, as to whether it was free of cost and what would have been the conditions imposed and in this view of the matter being unable to hold or to conclude that the provisions of the Act attracted to the transaction as to whether the applicant had failed to make good her case, it was inevitable for him to come to the conclusion that the applicant had not made good her case and accordingly dismissed the application.
6. It is against this order of the Assistant Commissioner, the respondent 4 pursued the matter before the Deputy Commissioner by filing Appeal No. 43 of 2003-04.
7. Though the Assistant Commissioner had grossly lurked of his responsibilities under the Act, fortunately for the applicant, the Deputy Commissioner took the initiative to get the original records, perused them, applied his mind to the facts of the case from the records and applied the provisions of the Act to the facts and on hearing learned Counsel for the applicant/appellant and learned Counsel for the respondent-the present writ petitioner and after examining their respective versions, even in terms of their pleadings as well as the written arguments and all the relevant records, posed the following three questions for determination:
(a) Whether the disputed land is a granted land?
(b) Whether the land was granted in favour of a person belonging to Scheduled Caste Community?
(c) As to whether the transactions were in violation of the grant order, in the sense that, whether it attracted the provisions of the Act?
8. The Deputy Commissioner, on examining the original records in DR No. 53/36 relating to the lands in question, namely an extent of 54 cents in Survey No. 62/B and an extent of 85 cents in Survey No. 63/B, found that these lands had been granted in terms of the grant order dated 21-3-1927; that the grant was in favour of one Dasara Kanimaiah and the record very clearly indicated that he is a person belonging to 'Madiga' community, a Scheduled Tribe Community and the grant was in favour of a person belonging to Scheduled Tribe and amongst other conditions, Condition No. 7 of the grant order indicated that the land should never be alienated in favor of any person other than persons belonging to Scheduled Caste/Scheduled Tribe Community.
9. In this view of the matter, the Deputy Commissioner recorded a finding that the transaction being one clearly in violation of the terms of the grant, attracted provisions of the Act;' that it is required to be invalidated in terms of Section 4 of the Act and proceeded to pass orders accordingly by setting aside the order passed by the Assistant Commissioner, allowed the appeal, declared the transactions to be invalid, directed the Assistant Commissioner to resume the land in favour of the State and to restitute it to the legal heirs of the original grantee in terms of his order dated 24-10-2005.
10. The portion of the order recording such findings by the Deputy Commissioner which is in Kannada language reads as under:
11. It is aggrieved by this order of the Deputy Commissioner, the present writ petition.
12. Smt. Vidya Iyer, learned Counsel for the petitioner has raised a two-fold contention.
13. It is firstly submitted that the finding and the order passed by the Deputy Commissioner is not correct or proper, that it is not based on the proper records; that the Deputy Commissioner could not have passed such an order and record such findings in the teeth of the finding recorded by the Assistant Commissioner in terms of his order dated 28-3-2003 (copy at Annexure-B) wherein he has clearly held that the records were not available etc., and therefore the application was required to be rejected.
14. It is the further submission of learned Counsel for the petitioner that the applicant had never made good her case that she is the legal heir of the original grantee nor that the grantee or the applicant belonged to Scheduled Caste Community and if that is the situation, there is no question of the Act being made applicable to the transaction.
15. It is also the submission of learned Counsel for the petitioner that the land which the petitioner had purchased in terms of the sale deed of the year 1976 from one Shiddalingappa was not a granted land at all; that it was a land owned in private ownership by the petitioner's vendors and his ancestors and that the applicant if at all had claimed to be a granddaughter of one Dasara Venkataiah whereas the entire discussion and record referred to by the Deputy Commissioner is one relating to grant of land in favour of one Madigara Dasara Kanimaiah and even the reference to the record as DR No. 53/1936 which the Deputy Commissioner had an occasion to examine, was not the one relating to the record either referred to by the applicant or examined by the Assistant Commissioner who had, in fact, examined the record under DR/8A/53/31, dated 22-4-1930 and in the light of such conflicting versions by the Assistant Commissioner and the Deputy Commissioner and even if the Deputy Commissioner has recorded a finding, found any order if at all which relates to a different record, such findings cannot be applied to the petitioner's case and therefore the order is clearly not sustainable, requires to be set aside and for verification of such aspects, the matter requires to be remanded.
16. Learned Counsel for the petitioner has placed considerable emphasis on the submission that there was no record before the Deputy Commissioner relating to the land as claimed by the applicant and as discussed by the Assistant Commissioner for arriving at the conclusion that the application has to be allowed and unless this aspect of the matter is verified by calling for the record by this Court, the matter cannot be concluded one way or the other and has very passionately urged for calling of the records in this case for verifying this aspect of the case at least for the satisfaction of the Court.
17. The respondent 4 has entered caveat through Counsel Sri G.M. Srikanth.
18. Sri G.M. Srikanth, learned Counsel for respondent 4, on the other hand, submits that the order passed by the Deputy Commissioner is a valid, proper order, in accordance with the provisions of law, based on the record relating to the facts and circumstances and the grant order to the original grantee; that the Deputy Commissioner has rightly interfered with the order passed by the Assistant Commissioner rejecting the application; that the Assistant Commissioner had not held a proper enquiry at all; that the Assistant Commissioner was more interested in dismissing the application than to make a proper enquiry and has also pointed out that the Assistant Commissioner has virtually misinterpreted, misread the application to the detriment of the applicant by describing the applicant to be as a person claiming to be the granddaughter of one Dasara Venkataiah whereas the respondent 4-applicant had in terms of her application dated 18-3-2002 had put forth the claim only as the granddaughter of Dasara Kanimaiah, the grandfather of the applicant Dasara Lingamma and the Assistant Commissioner had conveniently distorted the claim as to be one of the applicant being the granddaughter of one Dasara Venkataiah.
19. It is also the submission of learned Counsel for respondent 4 that the legal heirs of the original grantee had sold the lands in question to one Lakshmi Susheelamma in terms of the sale deed dated 23-8-1966 and to Smt. Gangamma in terms of the sale transaction of the year 1968, who in turn had jointly sold the land to the petitioner-Malleshappa in terms of the sale deed dated 3-11-1976 for a sum of Rs. 8,500/- etc., that the petitioner necessarily traces the title to the land only to said Madigara Dasara Kanimaiah who was the original grantee, a person belonging to Scheduled Tribe Community and the transaction being one in violation of the terms of the conditions of the grant, particularly, Condition 7 and before the Act came into force, the sale transaction was invalidated in terms of Section 4(1) of the Act; that the Deputy Commissioner has rightly recorded the findings, set aside the order of the Assistant Commissioner and allowed the appeal; that in the light of such categorical finding based on the record, there is absolutely no scope for interference in a matter of this nature in the exercise of writ jurisdiction under Article 227 of the Constitution of India and the petition requires to be rejected.
20. I have perused the orders of the Assistant Commissioner and the Deputy Commissioner as also the copy of the original application which had been filed by the applicant before the Assistant Commissioner which is made available by Sri Srikanth, learned Counsel for respondent 4.
21. Though learned Counsel for the petitioner has very vehemently contended that the recording of the Deputy Commissioner to hold that the grant was in favour of a person belonging to Scheduled Caste Community; that the applicant is a legal heir; that the transactions are required to be invalidated etc., are all not based on the actual record, that it is rather doubtful whether such a finding could have been recorded, particularly, as the Assistant Commissioner had recorded that the record was not available etc., and therefore the matter calls for further examination by this Court by looking into the original record, a glance at the order passed by the Assistant Commissioner clearly indicates that the Assistant Commissioner has woefully failed in his function and duties in considering the application of the nature filed by the respondent 4 before the Assistant Commissioner invoking Section 5 of the Act for an order applying Section 4 of the Act.
22. The Assistant Commissioner, in fact, has gone to the extent of distorting the application, describing the applicant as a person who is the granddaughter of one Dasara Venkataiah in whose favour there is no record indicating any grant.
23. The Assistant Commissioner also proceeds on the premise that the applicant has not made good her case that the land is a granted land, in the sense that, it was a land granted in favour of a person belonging to Scheduled Caste Community and that the applicant having not placed the original grant order has also not indicated the terms of the grant which alone is crucial for determining as to whether the provisions of the Act is attracted and as to whether the transactions are in violation of the terms of the grant and if so whether it requires further action under the Act.
24. The Assistant Commissioner has proceeded virtually like the litigation being adversarial in nature. The Act is not one contemplating any adversarial litigation of the nature as is sought to be submitted by the learned Counsel for the petitioner nor as proceeded by the Assistant Commissioner. Under the provisions of the Act, the Assistant Commissioner has even suo motu powers to take action in respect of such transactions which comes within the purview of the Act. The very fact that the applicant is unable to make good her case will not necessarily conclude the matter against such an applicant, but it is the bounden duty of the Assistant Commissioner to secure the relevant record, examine the proper position and then proceed to pass orders for effectuating the provisions of the Act.
25. The legislation being a piece of social welfare legislation and intended solely for the purpose of ensuring that the land which had been granted in favour of the depressed classes community and which they had lost over a period of time whether by others managing to grab such lands or even if they had acquired by bona fide sale transaction are all to be invalidated by the force of law under this Act and the object being to restitute the land in favour of such grantee or the legal heir.
26. Whoever is available an enquiry should be conducted in this direction and not to first reject the application on mere technical ground, particularly, as in a civil litigation where the plaintiff fails in a suit if he is unable to make good his case before the Court. The Assistant Commissioner being the original authority is cast with a responsible duty and is the functionary through whom the Legislature has sought to implement or to give effect to the objects of the Act. So far as the purchaser, who is caught in this crossfire is concerned, the only safeguard that is provided is that the authority should ensure that the land in question is a granted land and such a person who is presently in possession and occupation of the land is in occupation of such land and nothing beyond. Undoubtedly, the legislation of this nature, orders of this nature, definitely causes considerable anguish, heartburn even pecuniary and property loss to the purchasers but that is not the criteria for examining an application under Section 5 of the Act and for invalidating the transaction in terms of Section 4 of the Act, particularly, as the validity of this provision has already been upheld by the Supreme Court in the case of Manchegowda v. State of Karnataka .
27. If the ratio of the aforesaid decision is to be applied, the order passed by the Assistant Commissioner can only be characterised as a perverse order, making a farce of an enquiry and calling in aid distorted-facts to reject the application. The conduct of the Assistant Commissioner is most reprehensible to say the least. The Deputy Commissioner in appeal against such an order having realised the failure on the part of the Assistant Commissioner, took care to examine the original record, found that the applicant had wrongly quoted the number which was not relating to the original grant order but a number relating to documents or records subsequent to the grant i.e., one indicating the mutation of entries subsequent to the grant and the Assistant Commissioner had found shelter under this wrong or mistaken quoting of the number by the applicant to reject the application.
28. The Deputy Commissioner examined the original record and found that the original grant order was in terms of the grant order dated 21-3-1957 contained in DR No. 53 of 1936 and this record related to the very land in question namely, the extent of 54 cents in Survey No. 62/B and 85 cents in Survey No. 63/B and a grant in favour of Dasara Kanimaiah, a person belonging to 'Madiga' community which is undisputedly a Scheduled Caste Community and the applicant had claimed only as the granddaughter of the grantee Madigara Dasara Kanimaiah and not as granddaughter of one Dasara Venkataiah as was described by the Assistant Commissioner and who had passed an unsustainable order.
29. The Deputy Commissioner found sufficient material and circumstances which clearly indicated that the provisions of Section 4(2) of the Act is attracted, transactions leading upto the present transaction and at any rate present possession and occupation of the very land by the petitioner was clearly in violation of the provisions of Section 4(1) of the Act, invalidated the sale transaction, resumed the land to the State to be restituted to the legal heirs of the original grantee.
30. This categorically being the order and the order having clearly recorded such a finding and the order of the Deputy Commissioner having indicated that he has recorded a finding on perusal of the original record relating to the grant order in respect of the very land, I have no doubt that the order passed by the Deputy Commissioner is a proper order in terms of the provisions of the Act and I do not find any need or necessity to call for the record as requested by the learned Counsel for the petitioner to examine whether the Deputy Commissioner has recorded a right finding or if it is a wrong order. Submission cannot be accepted in the light of the very order and as discussed above.
31. I do not find any merit in the writ petition. Accordingly, writ petition is dismissed.