Karnataka High Court
Veeraswamy vs Special Deputy Commissioner on 11 April, 1990
Equivalent citations: ILR1990KAR1739
ORDER Ramakrishna, J.
1. The petitioner In this Writ Petition has called in question the legality and correctness of the orders (Annexures-A and B) passed by the Assistant Commissioner and the Deputy Commissioner, respondents 1 and 2 respectively.
2. A few facts that are necessary for the disposal of this Writ Petition are as follows;-
Parasa Bovi, respondent-3 approached the Assistant Commissioner with an application in the year 1980 seeking for the benefit under Section 4 of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 ('the Act' for short). His case was that he was in occupation of certain land in Sy. No. 54/2 of Devarahalli village belonging to the Government. That was in the year 1977. Presumably he made an application seeking for grant of the land which he was cultivating. It is not in dispute that by an order dated 14-9-1978 certain land came to be granted to him (the extent of the land granted is not clear from the impugned orders).
It was brought to the notice of the authorities concerned that 1 acre 10 guntas of the granted land came to be sold by a registered sale deed in favor of the petitioner on 14-12-1977. The case of the petitioner is that he has been in possession of the land continuously from 1977.
3. It is necessary to mention here that while the application of respondent-3 was pending before the Assistant Commissioner, the petitioner filed W.P. No. 6414 of 1981 challenging the constitutional validity of the Act and obtained stay of further proceedings before the Assistant Commissioner. Hence, there was delay in completing the enquiry by the Assistant Commissioner. However, after the disposal of the Writ Petition, notices were issued calling upon both parties to appear before him to hold an enquiry. By a perusal of the order made by the Assistant Commissioner, it is seen that despite service of notice, the petitioner did not appear. Therefore, he held an enquiry and recorded a finding that as the granted land came to be sold on 14-12-1977 in contravention of the condition of the grant, it was null and void and accordingly directed restoration of the land in favour of respondent-3.
4. Aggrieved by the said order, the matter was taken up before the Deputy Commissioner in appeal by the petitioner. The learned Deputy Commissioner affirming the view taken by the Assistant Commissioner dismissed the appeal. Hence, this petition.
5. Learned Counsel for the petitioner mainly contended that there was no transfer of the granted land; therefore, question of applying the provisions of Section 4 of the Act did not arise at all and that the petitioner had to notice of the enquiry and the Impugned order, Annexure-A, came to be passed behind his back. On these grounds, he submitted that the impugned orders were liable to be set aside and the matter remitted for re-consideration, in accordance with law.
6. I will deal with the second contention first that there was no opportunity to the petitioner of being heard. As already observed, after the disposal of the Writ Petition No. 6414 of 1981, the Assistant Commissioner served notices on both parties. Despite service of notice, the petitioner was absent and therefore the Assistant Commissioner had to proceed to hold the enquiry in the absence of the petitioner. However, he has recorded a specific finding that there was non-alienation clause for a period of 15 years and in contravention of that condition of the grant, the alienation took place. Therefore, he declared the alienation as null and void and directed restoration of the land in favour of respondent-3.
7. Presuming for the sake of arguments that the petitioner had no opportunity to put forth his case before the Assistant Commissioner, he had abundant opportunity when he presented an appeal before the Deputy Commissioner. The only ground urged before the Deputy Commissioner was that there was no alienation at all but only a temporary transfer for some monetary adjustment as the grantee was not in a position to cultivate the land investing money. That contention was considered and rejected by the Deputy Commissioner. The petitioner never urged before him that he had no opportunity before the Assistant Commissioner. In that view of the matter, this contention must fail.
8. Dealing with the legal contention particularly having regard to the scope of Section 4(1) of the Act, it is vehemently argued that the alienation having taken place prior to the grant of land in favour of respondent-3, provisions of Section 4(1) of the Act are not applicable. Thus, it is argued that the Assistant Commissioner had no jurisdiction to declare the alienation as null and void.
9. Sub-section (3) of Section 5 of the Act reads:
"(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."
In order to understand the scope of this Section, it is better to refer to the definition of the word "Transfer" defined in clause (e) of Sub-section (1) of Section 3 of the Act. It reads:
"(e) "transfer" means a sale, gift, exchange, mortgage (with or without possession), lease or any other transaction not being a partition among members of a family or a testamentary disposition and includes the creation of a charge or an agreement to sell, exchange, mortgage or lease or enter into any other transaction."
(Underlining is mine) From the above provisions, It is abundantly made clear that even in the absence of an instrument of transfer of the granted land, a person found to be in possession of the granted land, shall be presumed that such person has come into possession of the land contrary to the condition of the grant. Therefore, such possession cannot be protected. It is not the case of the petitioner that he is not in possession of the land. On the other hand, it is very much asserted that he is In possession of the land since 1977. In this connection, the contention urged is that the instrument of sale came into existence on 14-12-1977 while the grant in favour of respondent-3 was made on 14-9-1978 and that therefore the transfer being earlier to the grant, Section 4(1) of the Act cannot be attracted. The legislative intendment can be gathered by reading Sub-section (3) of Section 5 of the Act which makes it very clear that any person found in possession of the granted land other than the original grantee or his legal heir must be presumed to be in possession of the land in contravention of the condition of the grant. Indeed, there is a contravention of the condition of the grant, inasmuch as 15 years alienation clause is there in the grant. Thus, with a view to maintain the object behind the legislation, the authorities were right in holding that the alienation was null and void under Section 4(!) of the Act. I do not see any good ground to interfere with the said conclusion. Thus, the legal contention also fails.
In the result, the Writ Petition fails and is dismissed.