Karnataka High Court
Maj Gen J K Koshy (Retd) vs The Assistant Commissioner on 11 July, 2012
Bench: Chief Justice, B.V.Nagarathna
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
Dated this the 11th day of July, 2012
PRESENT
THE HON'BLE MR.VIKRAMAJIT SEN, CHIEF JUSTICE
AND
THE HON'BLE MRS.JUSTICE B.V.NAGARATHNA
W.A No.16558/2011 (SC-ST)
BETWEEN :
1. Maj. Gen. J K Koshy (Retd.)
Aged about 73 Years
S/O Late K.T. Koshy
Rep. by their General Power of Attorney Holder
Sri. M.K. Kuruvilla,
No. 135/2, Garden Restaurant Building,
Koramangala,
Bangalore-560 095
2. Smt. Shyamala Koshy
Aged about 68 Years,
W/O Maj. Gen. J.K. Koshy
Rep. by their General Power of Attorney Holder
Sri M.K. Kuruvilla,
No.135/2, Garden Restaurant Building,
Koramangala,
Bangalore- 560 095
... Appellants
(By Sri B N Jayadeva, Adv.)
And :
1. The Assistant Commissioner
Bangalore South Sub-Division,
Bangalore
2. The Special Deputy Commissioner
Bangalore District
Bangalore
3. Shri Chikkamuniyappa
( Since Deceased, by his LRs)
Sri C. Guruswamy,
Major, S/o.Late Chikkamuniyappa
2
R/at Bandepalya, Hongasandra Village,
Bangalore South Taluk
4. Smt. Muniyamma
Major, W/o.Chikkamuniyappa
R/O Bandepalya,
Hongasandra Village,
Bangalore South Taluk
5. Smt. Jayamma
W/O Late Venkataswamy,
D/O Late Chikkamuniyappa
R/O Bandepalya,
Hongasandra Village,
Bangalore South Taluk
6. Smt. Guramma
W/O Sri Papanna
Major, D/O Late Chikkamuniyappa
R/O Bandepalya,
Hongasandra Village,
Bangalore South Taluk
7. Smt. Yashodamma
W/O Sri. Shamappa
Major, D/O Late Chikkamuniyappa
R/O Bandepalya,
Hongasandra Village,
Bangalore South Taluk
8. Smt. Saraswathi
W/O Sri Kumar,
Major, D/O Late Chikkamuniyappa
R/O Bandepalya,
Hongasandra Village,
Bangalore South Taluk
9. Smt. Neelamma
W/O Sri Krishna
Major, D/O Late Chikkamuniyappa
R/O Bandepalya,
Hongasandra Village,
Bangalore South Taluk
10. Smt. Gowramma
Major, D/O Late Chikkamuniyappa
R/O Bandepalya,
3
Hongasandra Village,
Bangalore South Taluk
... Respondents
(By Sri B. Veerappa, AGA for R1 & R2)
This Writ Appeal is filed under section 4 of the Karnataka
High Court Act praying to set aside the order passed in the
Writ Petition No.29141/2010(SC/ST) dated 07/02/2011.
This Writ Appeal coming on for Orders this day, Chief
Justice delivered the following:
JUDGEMENT
VIKRAMAJIT SEN, C.J. (Oral) :
Notice had not been issued in this appeal. Due to non-
compliance of office objections and for non-appearance of the appellants or their representatives, the appeal was dismissed for non-prosecution on 22.05.2012. An application for restoration of the appeal has been filed.
We have heard the arguments of the learned counsel for the appellants on the appeal itself in great detail. The application is therefore deemed to have been allowed.
2. The dispute pertains to 2 acres of land in Sy.No.43/2 situated in Hongasandra village, Begur Hobli, Bangalore South Taluk.
3. The facts of the grant of land are best gathered from the concurrent summation to be found in the order of the Assistant Commissioner as well as the Special Deputy 4 Commissioner. The former in his order dated 08.12.2003 has observed as follows;
" In nutshell, in the instant case, according to the records the land in question was granted in the year 1939-40 free of cost to Shri Yellappa belonging to Scheduled Caste: that as per the then existing rules, the land granted free of cost shall not be alienated for ever; that the land is first alienated in the year 1957 and subsequently changed the hands in 1962, 1965 and in 1971 in favour of the respondents. The heirs of original grantee, the petitioners herein have produced genealogical tree, caste certificate obtained from the Tahsildar. Thus, the alienation of the land in question is in sheer violation of the provisions of Section 4(1) of Act and resultantly, the sale deeds have been held as null and void."
4. These facts were once again gone into and the findings of the Assistant Commissioner were confirmed by the Special Deputy Commissioner in the following words;
" Thus, as rightly pointed out by the Assistant Commissioner, from the entries in the Index of Land Register it is clear that the land in question was granted in favour of Yellappa S/o.Muniya as per No.B2.DAR.184/39-40. Hence, it could be said that the land was granted to Shri Yellappa belonging to Scheduled Caste during the year 1939-40. It is the decided principles of law and rules that the Rules prevailing at the time of grant shall be made applicable. According to the then existing Rule 43(8) framed under 5 Mysore Land Revenue Code - Section 233 - as per Government Notification No.R-482 LR.450-373 dated 29.07.1936 and No.R.4609-LR-98-35-63 dated 31st January 1936 and Notification No.R.2838 LR.89-38-10 dated 13.12.1938:
43(8) Occupancies granted to applicants belonging to Depressed classes under Rule 43(5) above and those granted by Government free of upset price or reduced upset price to poor and landless people of other communities or to religious or charitable institutions shall not be alienated and the grantees shall execute Mutchalikas in the form prescribed by Government. This shall not, however, prevent lands granted to Depressed classes under Rule 43(5) being accepted as security for any loan which they may wish to obtain from Government or from a co-operative Society for the bonafide purposes of improving the land.
From the above provision of rules then existing, the land granted to the Depressed Classes shall not be alienated for ever."
5. These concurrent findings have found favour with the learned Single Judge exercising writ jurisdiction. We may record that the first sale of the subject land took place on 06.06.1957 followed by a second and third sale on 23.07.1962: followed by a fourth sale on 03.11.1965: The appellants are the fifth purchasers by a sale deed dated 20.02.1971.
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6. Before us, the learned counsel for the appellants endeavours to contend that only one-year lease had been entered into in favour of the original allottee/grantee in 1939-
40. There is nothing on record to indicate that that arrangement was in the nature of a lease. All that is mentioned is that the revenue for 1940-41 is Rs.3/- on a temporary basis. The land revenue for the period 1940-41 being at Rs.3/- is the concessional rate of revenue for the period immediate to the grant. The same would not imply that there was a lease for a period of one year as contended by the learned counsel for the appellants. The appellants seek to introduce the concept of a lease into the transaction and thereafter seek to contend that since it was a lease, the Karnataka Scheduled Castes & Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 (for short 'the PTCL Act') does not apply.
7. On several occasions, we have observed that the purpose of these grants was to alleviate the sufferings of the depressed classes, later known as Scheduled Castes and Scheduled Tribes. It was for this reason that an embargo is there for transfer either on a permanent basis or for a term of years extending between 10 and 20 years. In 1939-40 the 7 stipulation was that transfer of property was prohibited forever. The PTCL Act defines 'granted lands' to mean any land granted by a Government to a person belonging to any of the Scheduled Castes / Scheduled Tribes and includes land allotted or granted to such persons under the relevant law for the time being in force relating to agrarian reforms or land ceilings or abolition of inams. The relevant law at the time of grant was Section 43(5) of the Mysore Land Revenue Code which stated that notwithstanding anything hereinbefore stated, the Deputy Commissioner may, at his discretion, grant to applicants belonging to the depressed classes who are bonafide agriculturists or propose to cultivate the land themselves, lands at half the upset value, the amount being recovered in not more than five annual installments. ...." It has not been disputed at all that the original grantee belonged to the depressed class. What is contended is that the claimants have not proved through pedigree that they are legal representatives or heirs of the original grantee. What is next to be considered is whether the land was allotted or granted in terms of the definitions contained in Section 3(b) of the PTCL Act. We have already noticed that the word 'grant' has not been restrictively defined at all. Looked at from any perspective the arrangement entered into in 1939-40 would be allotment of a land or a grant of the land. Therefore, the 8 PTCL Act comes into operation immediately. Section 5(3) of the Act cannot be ignored. It ordains that "Where any granted land is in the possession of a person, other than the original grantee or his legal heir, it shall be presumed, until the contrary is proved, that such person has acquired the land by a transfer which is null and void under the provisions of sub- section (1) of Section 4." Even though there are concurrent findings indicating that the grant was made as per the law prevailing in 1939-40, attracting the permanent non-alienation stipulation, it is contended that the grant or the Saguvali Chit ought to have been produced. The Assistant Commissioner, the Special Deputy Commissioner as well as the writ Court have not been impressed with this argument. The burden of proof statutorily lay on the appellants to prove the case. This has not been done. We therefore find no merit in the appeal and confirm the findings of the two revenue authorities and the writ court.
8. The relevant decision of the Hon'ble Supreme Court in the case of Bhadrappa (dead) by LRs. -V/s- Tolacha Naik (2008)2 SCC 104) para-8 can be reproduced as follows:
8. Section 5(3) of the Act clearly provides that any person other than the grantee or his legal heirs in possession of the granted land, shall be deemed to 9 be in possession under a transfer which is null and void under Sections 4(1) and 4(2) until and unless anything contrary is established. Burden, therefore, is on the person in possession to prove that his possession was valid in accordance with law. It was found factually that the writ petitioner had failed to establish the same. The transfer in favour of Gangappa was in violation of the prohibition of the Act. That being so, the High Court was right in dismissing the writ petition and the writ appeal. In Guntaiah and v. Hambamma it was noted as follows:
(SCC pp. 234-35, para 14) "14. It is also pertinent to note that the prohibition regarding alienation is a restrictive covenant binding on the grantee. The grantee is not challenging that condition. 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. Of course, he would be 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 grantee for a period of 15 years, that is binding on the grantee so long as he does not challenge that clause, more so when he purchased the land, in spite of being aware 10 of the condition. The Full Bench seriously erred in holding that the land was granted under Rule 43-J and that the Authorities were not empowered to impose any conditions regarding alienation without adverting to Section 4 of Act 2 of 1979. These lands were given to landless persons almost free of cost and it was done as a social welfare measure to improve the conditions of poor landless persons.
When these lands were purchased by third parties taking advantage of illiteracy and poverty of the grantees, Act 2 of 1979 was passed with a view to retrieve these lands from the third-party purchasers. When Act 2 of 1979 was challenged, this Court observed in Manchegowda v. State of Karnataka (SCC pp. 310-11, para 17)
17. Granted lands were intended for the benefit and enjoyment of the original grantees who happen to belong to the Scheduled Castes and Scheduled Tribes. At the time of the grant, a condition had been imposed for protecting the interests of the original grantees in the granted lands by restricting the transfer of the same. The condition regarding the prohibition on transfer of such granted lands for a specified period, was imposed by virtue of the specific term in the grant itself or by reason of any law, rule or regulation governing such grant. It was undoubtedly open to the grantor at the time of granting lands to the original grantees to stipulate such a condition the condition being a term of the grant itself, and the condition was imposed in the 11 interests of the grantee. Except on the basis of such a condition the grantor might not have made any such grant at all. The condition imposed against the transfer for a particular period of such granted lands which were granted essentially for the benefit of the grantees cannot be said to constitute any unreasonable restriction. The granted lands were not in the nature of properties acquired and held by the grantees in the sense of acquisition, or holding of property within the meaning of Article 19(1)(f) of the Constitution. It was a case of a grant by the owner of the land to the grantee for the possession and enjoyment of the granted lands by the grantees and the prohibition on transfer of such granted lands for the specified period was an essential term or condition on the basis of which the grant was made. It has to be pointed out that the prohibition on transfer was not for an indefinite period or perpetual. It was only for a particular period, the object being that the grantees should enjoy the granted lands themselves at least for the period during which the prohibition was to remain operative. Experience had shown that persons belonging to Scheduled Castes and Scheduled Tribes to whom the lands were granted were, because of their poverty, lack of education and general backwardness, exploited by various persons who could and would take advantage of the sad plight of these poor persons for depriving them of their lands. The imposition of the condition of prohibition on transfer for a particular period could not, therefore, be considered to 12 constitute any unreasonable restriction on the right of the grantees to dispose of the granted lands. The imposition of such a condition on prohibition in the very nature of the grant was perfectly valid and legal."
9. The question that remains and which must be addressed by the State Government is, whether the land deserves to be returned. It requires to be clarified that since in view of Section 43(8) of the Mysore Land Revenue Code, there was a permanent non-alienation clause, the first sale in 1957 as well as all subsequent sales were contrary to the grant and were therefore null and void. The PTCL Act would therefore immediately come into operation.
10. We may also briefly observe that in view of the sale of the land in breach of the terms of the grant as far back as in 1957, there would be little wisdom in restoring the land to the original grantee or his legal representatives. After the passage of half a century, there is controversy of who is in possession of the land. The learned counsel for the appellants asserts that it is the appellants who are in possession, whereas the learned Additional Government Advocate submits that as per the revenue records 13 Sri.Guruswamy is in possession. It is for State to take appropriate action.
The appeal is dismissed with no order as to costs.
Sd/-
CHIEF JUSTICE Sd/-
JUDGE mv