Karnataka High Court
Shanthakumar vs The Deputy Commissioner And Ors. on 25 July, 2003
Equivalent citations: ILR2004KAR4006
Bench: P. Vishwanatha Shetty, A.M. Farooq
JUDGMENT Vishwanatha Shetty, J.
1. In this appeal, the appellant has called in question, the correctness of the Order dated 25th October 1999 made in Writ Petition No. 37399 of 1999 by the learned Single Judge. The learned Single Judge in the impugned order has confirmed the Order dated 10th August 1999 made in PTL. 9/00-2000, a copy of which has been produced as Annexure-B to this Appeal, by 1st respondent- Deputy Commissioner (hereinafter referred to as ' the Deputy Commissioner', confirming the order dated 3rd April 1999 made in PTCL No. 82/95-96, a copy of which has been produced as Annexure -A to this Appeal, passed by the 2nd respondent Assistant Commissioner [hereinafter referred to as 'the Assistants Commissioner']. The Assistant Commissioner in his Order dated 3rd April 1999 has declared the sale of land measuring 5.00 acres in Survey No. 131 of Siragunda Village, Gonibidu made by means of a registered sale deed dated 13th April 1964 by one Hongaiah S/o Chikkaiah and Rangaiah S/o Halagaiah in favour of K.M. Chandrashekaraiah and K.M. Shivashankaraiah as null and void. In the said order he has further held that the land in question should be resumed to the State Government and the original grantee should be put in possession.
2. Facts in brief, which are not in serious dispute and which may be relevant for the disposal of this Appeal, may be stated as hereunder:
The land measuring 5 acres in Survey No. 131 of Shiragonda Village, Gonibidu was originally granted in favour of Sri Hongaiah S/o Rangaiah by the State Government by means of grant order dated 31st March 1954 subject to the conditions provided under Rule 43(8) of the Land Grant Rules framed by the then Maharaja of Mysore, in exercise of the power conferred on him under Section 233 of the Land Revenue Act [hereinafter referred to as 'the Rules']. The grantee of the said land, it is not in serious dispute, belonged to the depressed class. The Rule governing the grant of the said land at the relevant time prohibited alienation of the granted land forever. However, by a subsequent amendment made to Rule 43(8) of the Rules, the alienation of the land was prohibited for a period of 30 years from the date of the grant. The document of title issued to the original grantee prohibited the alienation of land for a period of ten years from the date of issue of title deed on 31st March 1954. The State of Karnataka passed an Act known as the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 (hereinafter referred to as 'the Act']. The said Act came into force with effect from 1st January 1979. Section 4 of the act provides that notwithstanding anything in 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) to Section 4 of the Act, shall be null and void and no right title, or interest in such land shall be conveyed not be deemed ever to have been conveyed by such transfer. Section 5 of the Act confers power on the Assistant Commissioner to resume the granted land, on enquiry if he is satisfied that the transfer of alienation of the granted land was made in contravention of the terms of the grant. It is useful to extract Section 4 and 5 of the Act, which reads as hereunder:
"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 nor 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 provision of Sub-section (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.
5. RESUMPTION AND RESTITUTION OF GRANTED LANDS:
(1) Where, on application by any interested person or on information given in writing by any person or suo moto, and after such enquiry as he deems necessary, the Assistant Commissioner is satisfied that the transfer of any granted land is null and void under Sub-section (1) of Section, 4 he may:
(a) by order take possession of such land after evicting all persons in possession thereof in such manner as may be prescribed;
Provided that no such order shall be made except after giving person affected a reasonable opportunity of being heard;
(b) Restore such land to the original grantee or his legal heir. Where it is not reasonably practicable to restore the land to such grantee or legal heir, such land shall be deemed to have vested in the Government free from all encumbrances. The Government may grant such land to a person belonging to any of the Scheduled Castes or Scheduled Tribes in accordance with the Rules relating to grant of land.
1(A): After an enquiry referred to in Sub-section (1) the Assistant Commissioner may if he is satisfied that transfer of any granted land is not null and void pass an order accordingly.
(2): Any order passed under Sub-section (1) and 1(A) shall be final and shall not be questioned in any Court of law and no injunction shall be granted by any Court in respect of any proceeding taken or about to be taken by the Assistant Commissioner in pursuance of any power conferred by or under this Act.
(3) For the purposes of this section, 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,
3. The respondents 3 and 4 who claim to be the legal heirs of the original grantee, subsequent to the coming into force of the Act, made an application for declaration of the sale of the land made by them as null and void and for a further direction to evict the appellant from the said land and put them in possession of the same. The Assistant Commissioner, after notice to the appellant who was the subsequent purchaser of the said land, passed order Annexure B dated 3rd April 1999, declaring that the sale of the land in question as null and void and further directing the resumption of the said land in favour of the State and also directing that the respondents 2 and 3 should be put in possession of the said land. The Appeal filed before the Deputy Commissioner having been dismissed, the appellant approached this Court in Writ Petition No. 37399 of 1999. As noticed by us earlier, the learned Single Judge, in the impugned order, has dismissed the Writ Petition confirming the order passed by the Deputy Commissioner as well as the Assistant Commissioner. Aggrieved by the said order, this Appeal is filed.
4. Sri Uday Holla, learned Counsel appearing for the appellant challenging the correctness of the orders impugned made two submissions. Firstly, he submitted that the orders passed by the learned Single Judge as well as the respondents 1 and 2 are liable to be set aside on the ground that they have failed to consider that the appellant and his predecessor, in title of the land in question, have perfected their title by adverse possession having been in continuous and uninterrupted possession of the land in question for a continuous period more than 12 years, on the date of commencement of the Act. According to him, since the title of the land in question has been absolutely transferred in favour of original grantee, the respondents 1 and 2 and the learned Single Judge should have held that the period of limitation applicable to the facts of the present case is 12 years and not 30 years as found in the orders impugned. The learned Counsel pointed out that since the learned Single Judge as well as the respondents 1 and 2 have proceeded on the basis that the period of limitation applicable is being 30 years, the orders in question are liable to be set aside. In support of his submission that the title in the property had been absolutely transferred to the original grantee by virtue of the grant order, he read to us the stipulations in the document of title which is titled as "title deed" (Maaleekateya Dasthaveju). Sri Holla, in support of his contention that the period of limitation applicable is 12 years in the present case, also has relied upon the decision of the Hon'ble Supreme Court in the case of K.T. HUCHEGOWDA v. DEPUTY COMMISSIONER, ILR 1994 (3) KAR 1839.
5. Secondly, relying upon the decision of the Hon'ble Supreme Court in the case of MANCHEGOWDA v. STATE OF KARNATAKA, , he submitted that once it is held that on the date of the commencement of the Act, the title of the transferee of the granted land has ceased to be voidable by reason of acquisition of prescriptive right on account of long and continued user for the requisite period, the title of such transferees should not be rendered void by virtue of the provisions of the Act, as such, granted lands would also not come within the purview of the Act, as the title of such transferees to the granted land had been perfected before the commencement of the Act. In this connection, he referred to us the observation made in paragraph 24 of the said judgment.
6. However, Sri T.R. Subbanna, learned Senior Counsel appearing for Sri T. Kirankumar who had entered appearance on behalf of respondents 3 and 4 as a Counsel engaged by the High Court legal Services Committee submitted that in the facts and circumstances of the case the period of limitation applicable is 30 years and not 12 years as contended by the learned Counsel for the Appellant. He submitted that in respect of granted lands, the period of limitation applicable should be held as 30 years and not 12 years as contended by the learned Counsel for the Appellant. He further submitted that the terms of grant made clearly indicate that the title of the land was retained by the State and what was granted to the grantee was to enjoy the land permanently by being in possession of the granted lands. According to him, in cases of granted land made in favour of depressed classes where the lands are granted either by way of free grant or by waiving the major portion of the upset price, it must be held that the title in the said land is always retained by the State and what is granted to the grantee is only the right to be in possession and enjoyment of the said land. It is his further submission that the several stipulations imposed while granting the land in question would show that the title in the land was retained by the State and what was granted was only to cultivate and enjoy the land; and therefore the period of limitation applicable, in the facts and circumstances of the present case, should be held as 30 years. Therefore, he submits that the order passed by the single Judge and also the orders passed by the respondents 1 and 2 cannot be found fault with and they are not liable to be interfered with by us in this Appeal. Smt. Ratna N. Shivayogimath, learned Government Pleader supported the submission of Sri T.R. Subbanna.
7. In the light of the rival submissions made by the learned Counsel appearing for the parties, the only question that would arise for our consideration in this appeal is as to whether the order passed by the learned Single Judge confirming the orders passed by the respondents 1 and 2 is required to be interfered with by us in this appeal.
8. The Hon'ble Supreme Court in the case of MANCHEGOWDA (supra), while considering the constitutional validity of the Act, has taken the view that under three circumstances the provisions of the Act cannot be made applicable to declare the sale as null and void. They are:
1. If the transfer of the granted lands had been made after the expiry of the period of prohibition;
2. If the granted lands were transferred before the commencement of the Act and not in contravention of the prohibition provided for transfer of such lands;
3. If the granted lands had been transferred before the commencement of the Act in violation of the conditions regarding prohibition of such transfer, and the transferee who had initially acquired only a voidable title in such granted lands had perfected his title for the granted land by prescription by long and continuous enjoyment thereof in accordance with law before the commencement of the Act.
In this connection, it is useful to refer to paragraph 24 of the judgment relied upon by Sri Holla, which reads as hereunder:
"24. Though we have come to the conclusion that the Act is valid, yet, in our opinion, we have to make certain points clear. Granted lands which had been transferred after the expiry of the period of prohibition do not come within the purview of the Act, and cannot be proceeded against under the provisions of this Act. The provisions of the Act make this position clear, as Sections 4 and 5 become applicable only when granted lands are transferred in breach of the condition relating to prohibition on transfer of such granted lands. Granted lands transferred before the commencement of the Act and not in contravention of prohibition on transfer are clearly beyond the scope and purview of the present Act. Also in case where granted lands had been transferred before the commencement of the Act in violation of the condition regarding prohibition on such transfer and the transferee who had initially acquired only a voidable title in such granted lands had perfected his title in the granted lands by prescription by long and continuous enjoyment thereof in accordance with law before the commencement of the Act, such granted lands would also not come within the purview of the present Act, as the title of such transferees to the granted lands . has been perfected before the commencement of the Act. Since at the date of the commencement of the Act the title of such transferees to the granted lands has been perfected before the commencement of the Act. Since at the date of the commencement of the Act the title of such transferees had ceased to be voidable by reason by acquisition of prescriptive rights on account of long and continued use for the requisite period, the title of such transferees could not be rendered void by virtue of the provisions of the Act without violating the constitutional guarantee. We must, therefore, read down the provisions of the Act by holding that the Act will apply to transfers of granted lands made in breach of the condition imposing prohibition on transfer of granted lands only in those cases where the title acquired by the transferee was still voidable at the date of commencement of the Act and had not lost its defeasible character at the date when the Act came into force. Transferees of granted lands having a perfected and not a voidable title at the commencement of the Act must be held to be outside the pale of the provisions of the Act. Section 4 of the Act must be so construed as not to have the effect of rendering void the title of any transferee which was not voidable at the date of the commencement of the Act."
9. Therefore, from the observation made by the Hon'ble Supreme Court, it is clear that even in cases where lands have been transferred before the commencement of the Act in violation of the condition of the grant, if the transferee of such a land perfects his title in the granted land by prescription on account of long and continuous enjoyment thereof in accordance with law before the commencement of the Act, such granted land would not come within the purview of the Act. Therefore it is necessary to examine whether the appellant has perfected his title in respect of the granted land by adverse possession as claimed by the learned Counsel for the Appellant. As noticed by us earlier, the land in question was granted on 31st March 1954 and the sale of the said land was made on 13th April 1964. Therefore, it is clear that the sale in question was made prior to the commencement of the Act. The total period of possession of the land granted on the date of coming into force of the Act is around 10 years. Therefore, if the period of limitation that is applicable is 12 years as claimed by the Counsel for the Appellant and not 30 years as found by the learned Single Judge, the provisions of the Act will not be applicable so far as the land in question and the sale of land in question cannot be declared as illegal and void in law as has been done in the orders impugned.
10. In the case of SUNKARA RAJYALAKSHMI (supra), the Hon'ble Supreme Court had taken the view that the period of limitation which has to be taken into account for the purpose of determining whether the title in the granted land has been perfected by prescription is that which runs against the State Government and therefore, it would be 30 years and not 12 years. In this connection it is useful to refer to the observation made at paragraph 2 of the said judgment which reads as hereunder:
" We may also make it clear that so far as the second exception laid down by us in our judgment dated 17.4.1984 is concerned, namely that the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 will not apply where the transferees have perfected their title in the granted land by prescription of long and continuous enjoyment before the commencement of the Act, the period of limitation which has to be taken into account for the purpose of determining whether the title has been perfected by prescription is that which runs against the State Government and therefore it would be 30 years and not 12 years."
11. Further, the Hon'ble Supreme Court in the case of K.T. Huchegowda ( Supra) after referring to its earlier judgment in the case of SUNKARA RAJYALAKSHMI (supra) has taken the view that if the title of the granted land is retained by the State, the period of limitation that is applicable is 30 years; and if the title of the land is absolutely transferred to the grantee, the period of limitation applicable is 12 years. It is useful to refer to the observation made by the Hon'ble Supreme Court at paragraph 9 and 10 of the judgment which reads as hereunder:
"9. There is no dispute that so far as the Act with which we are concerned, no special period of limitation has been prescribed, in respect of lands which have been granted to the members of the Scheduled Castes and Scheduled Tribes with absolute ownership by the State Government. In this background, when this Court in the case of Sunkara Rajyalakshmi v. State of Karnataka (supra) said that the period of limitation, which has to be taken into account for the purpose of determining, whether the title has been perfected by prescription, shall be that with runs against the State Government and therefore it would be 30 years and not 12 years, has to be read in context with the lands, the ownership thereof, has not been transferred absolutely to the members of the Scheduled Castes and Scheduled Tribes; the lands having been only allotted to them, the remaining with the State Government. The cases where the transfer by the State Government by way of grant has been absolute, then unless there is an amendment so far the period of limitation is concerned it is not possible to apply the special limitation of 30 years, so far such grantees are concerned when the question to be determined, is as to whether a transferee in contravention of the terms of the grant has perfected his title by remaining in continuous and adverse possession. The transferee, who has acquired the land from the grantee, in contravention of the terms of the grant shall perfect his title by adverse possession by completing the period of 12 years. When this Court said in its main judgment, in the case Sri Manchegowda v. State of Karnataka, that in cases where granted lands had been transferred before the commencement of the Act in violation of the condition, regarding prohibition on such transfer and the transferee who had initially acquired only a voidable title, in such granted lands had perfected his title in the granted lands by prescription by long and continuous enjoyment thereof in accordance with law before the commencement of the Act, has to be read, for purpose of determining the period of limitation in respect of lands granted with absolute ownership, to mean 12 years and grant by way of allotment without transfer of the ownership in favour of the grantee, to mean 30 years.
10. It is obvious that for the purpose of determining whether the period of 12 years or 30 years limitation is to be applied, each case has to be examined on its own merit. The High Court has dismissed the Writ Application as well as the Appeal merely on the basis of the order passed by this Court in the case of Sunkara Rajyalakshmi v. State of Karnataka ( supra) on the Review application filed before this Court. According to us the High Court has to examine the claim made by the Appellant on the materials produced in support of the said claim, especially the deed of grant in favour of the original grantee, for the purpose of recording a finding as to whether the grant was in nature of absolute transfer of the title of the State Government in favour of the grantee, or it was a mere allotment for enjoyment of the lands in question, the title having remained with the State Government."
(emphasis supplied)
12. From the observation made by the Hon'ble Supreme Court extracted above, as notice by us earlier, it is clear that if the title in the land grant remains with the State Government, the period of limitation applicable is 30 years, and if the title in the land granted had been transferred absolutely to the original grantee, the period of limitation is 12 years unless a special enactment is passed providing that the period of limitation applicable is 30 years. In the orders impugned passed by the respondents 1 and 2 and also by the learned Single Judge, they have proceeded on the basis that the period of limitation applicable is 30 years. They have not examined the stipulations in the terms of the grant made in favour of the original grantee. In our view, in the light of the judgment of the Hon'ble Supreme Court in the case of K.T. HUCHEGOWDA (supra), when the appellant claims that he has perfected his title by adverse possession, the respondents 1 and 2 were required to examine the terms and conditions of grant and on such examination were required to record finding as to whether the title in the property continued to remain with the State Government when the grant was made in favour of the grantee or the title in respect of the granted land stood absolutely transferred in favour of the original grantee. It is clear from the orders impugned passed by respondents 1 and 2 and the learned Single Judge that such an examination was not done by them. Though Sri Holla took us to various stipulations in the documents of title/order of grant to show to us that the title in the granted land absolutely stood transferred to the original grantee, however, since the same was strongly refuted by Sri T.R. Subbanna and Smt. Ratna, N. Shivayogimath, we find it inappropriate for us to examine the same in this appeal in the absence of any finding recorded by respondents 1 and 2 and also by the learned Single Judge on that question. The Assistant Commissioner will have the benefit of seeing all original records, which are built up for grant of the land and also the conditions and terms of the grant, to come to the conclusion with regard to the nature of the grant. Therefore, having regard to the facts and circumstances of this case, we are of the view that it would be just and proper to direct the 2nd respondent Assistant Commissioner to examine the same and record a finding as to whether the title in the land granted remained with the State Government or it stood absolutely transferred to the original grantee? In the event of the Assistant Commissioner coming to the conclusion that the title in the land absolutely stood transferred to the original grantee, it is made clear that the period of limitation required to be applied in the light of the decision of the Hon'ble Supreme Court in the case of K.T. Huchegowda (supra) is 12 years on the date of commencement of the Act. On the other hand, if he comes to the conclusion that the title of the land granted remained with the State Government then the period of limitation to be applied, on the date of commencement of the Act, is 30 years. It is further made clear that the period of 12 years or 30 years for the purpose of determining limitation is required to be considered on the date of commencement of the Act.
13. Before parting with the Order, it is necessary to place it on record the assistance given by Sri T.R. Subbanna, learned Senior Advocate who had appeared on behalf of the High Court Legal Services Committee for respondents 3 and 4, who remained unrepresented in this appeal.
14. In the light of the discussion made above, we make the following:
ORDER
1. The Order dated 25th October 1999 made in Writ Petition No. 37399 of 1999 by the learned Single Judge is hereby set aside.
2. Orders Annexure-A dated 3rd April 1999 made in PTCL No. 82/95-96 by the 2nd respondent - Assistant Commissioner and Order Annexure -B dated 10th August 1999 made in PTL. 9/ 99-2000 by the 1st respondent - Deputy Commissioner are hereby quashed and the matter is remitted to the 2nd respondent Assistant Commissioner to reconsider the entire matter afresh in accordance with law and in the light of the observation made in the course of this Order.
15. In terms stated above this appeal is partly allowed and disposed of. However, no order is made as to costs.
16. Smt. Rathna N. Shivayogimath, learned Government Pleader, is given four weeks' time to file her memo of appearance.