Karnataka High Court
Sri Ashwatha Reddy vs The Assistant Commissioner on 24 August, 2012
Author: Vikramajit Sen
Bench: Chief Justice, Aravind Kumar
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 24th DAY OF AUGUST 2012
PRESENT
THE HON'BLE MR.VIKRAMAJIT SEN, CHIEF JUSTICE
AND
THE HON'BLE MR. JUSTICE ARAVIND KUMAR
WRIT APPEAL No.1692/2009 (SC-ST)
BETWEEN:
Sri. Ashwatha Reddy,
S/o. Sri. Appi Reddy,
Aged about 54 Years,
R/A. Lakkepalli Village,
Munaganahalli Hobli,
Chintamani Taluk,
Kolar District.
(Now Chikballapur District). : Appellant
(By Shri. G. Gangi Reddy, Advocate)
AND:
1. The Assistant Commissioner,
Chikkaballapur Sub-Division,
Chikkaballapur, Kolar District.
2. The Deputy Commissioner,
Kolar District, Kolar.
3. Sri. Narisimhappa,
S/o. Late A.D. Ramanna,
2
Aged about 53 Years,
R/at Lakkepalli village,
Munaganahalli Hobli,
Chintamani Taluk,
Kolar District,
(Now Chikkaballapur District). : Respondents
(By Shri. B. Veerappa, Additional Govt. Advocate 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 Writ
Petition No.8818/2006 dated 04.12.2008.
This Writ Appeal having been heard and reserved for
pronouncement of judgment, this day, the Chief Justice
pronounced the following :
JUDGMENT
Vikramajit Sen, C.J.
This appeal assails the concurrent findings of the Assistant Commissioner and the Deputy Commissioner, as well as the learned Single Judge who has passed the impugned Order. Undeterred by these consistent views the Appellant has preferred the present appeal. The Assistant Commissioner Chikkaballapur sub-division in his Order dated 13.07.2001 has noted the contents of the Objections filed by the Appellant admitting that in respect of the lands measuring 02 acres 26 3 guntas in Survey No. 103 situated at Lakkepalli village, Muganahalli Hobli, Chintamani Taluk, a Grant was made to late Ramanna on 15.11.1943 under the "Grow More Food" scheme and most importantly, that after the prescribed period the land was re-granted to late Ramanna, who uncontrovertedly, belonged to the Scheduled Caste of Adi Dravida. Since the Mysore Land Revenue Code 1888 was applicable, the covenant in the Grant prohibited alienation in perpetuity, contrary to which late Ramanna had sold the land on 30.05.1962. It was in these circumstances that the Assistant Commissioner had concluded that the sale deserved to be declared as null and void as per Section 4(1) of the Karnataka Scheduled Caste and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 (hereinafter called 'the PTCL Act' for short). The decision was carried in appeal to the Deputy Commissioner Kolar District, Kolar who in his Order dated 28.10.2005 noted that the land in question had been repossessed by the legal representatives of the original grantee i.e., Respondent No.3 Narasimhappa, and affirmed the finding that the original grantee late Ramanna belonged to a Scheduled Caste; and that the Grant attracted the 4 condition of perpetual non-alienation, in violation of which the land was sold to the Appellant's predecessor in title.
2. In Papaiah vs. State of Karnataka (1996) 10 SCC 533 five acres of land were allotted on 13.02.1940 under Rule 43(8) of the Mysore Land Revenue Code. The application for restoration of the land was filed after 45 years of the grant and after 28 years of the execution of the Sale Deed and their Lordships clarified the law thus -
"8. It is seen that Article 46 of the Constitution, in terms of its Preamble, enjoins upon the State to provide economic justice to the Scheduled Castes, Scheduled Tribes and other weaker sections of the society and to prevent their exploitation. Under Article 39 (b) of the Constitution, the State is enjoined to distribute its largess, land, to sub- serve the public good. The right to economic justice to the Scheduled Castes, Scheduled Tribes and other weaker is a fundamental right to secure equality of status, opportunity and liberty. Economic justice is a facet of liberty without which equality of status and dignity of person are teasing illusions. In rural India, land provides economic status to the owner. The State, therefore, is under 5 constitutional obligation to ensure to them opportunity giving its largess to the poor to augment their economic position. Assignment of land having been made in furtherance thereof, any alienation, in its contravention, would be not only in violation of the constitutional policy but also opposed to public policy under Section 23 of the Contract Act. Thereby, any alienation made in violation thereof is void and the purchaser does not get any valid right, title or interest thereunder. It is seen that Rule 43 (a) specifically prohibits alienation of assigned land. It does not prescribe any limitation of time as such. However, it is contended that the Appellant has obtained land by way of sale in 1958 long before the Act came into force and thereby he perfected his title by adverse possession. We find no force in contention. This Court had considered this question in similar circumstances R. Chandevarappa's case and had held thus:
"The question then is whether the Appellant has perfected his title by adverse possession. It is seen that a contention was raised before the Assistant Commissioner that the Appellant having remained in possessions from 1968, he perfected his title by adverse possession. But the crucial facts 6 to constitute adverse possession have not been pleaded. Admittedly the Appellant came into possession by a derivative title from the original grantee. It is seen that the original grantee has no right to alienate the land. Therefore, having come into possession under colour of title from original grantee, if the Appellant intends to plead adverse possession as against the State, he must disclaim his title and plead his hostile claim to the knowledge of the State and that the within the State had not taken any action thereon within the prescribed period. Thereby, the Appellant's possession would become adverse. The counsel in fairness, despite his research, is unable to bring to our notice any such plea having been taken by the Appellant."
3. In Ejas Ali Qidwai -Vs- Special Manager, Court of Wards, AIR 1935 PC 53, the Privy Council perspicuously opined that "a person who bases his title on adverse possession must show by clear and unequivocal evidence that his possession was hostile to the real owner and amounted to a denial of his title to the property claimed." S.M. Karim -Vs- Bibi Sakina 1964 (6) SCR 780 : AIR 1964 SC 1254 concerned the efficacy of a benami 7 transaction and upon its failure, the availability of the plea of adverse possession. The Court clarified that such a claim "must be adequate in continuity, in publicity and extent and a plea is required at least to show when possession becomes adverse so that the starting point of limitation against the party affected can be found." This enunciation of the law has been restated in Gaya Parshad Dikshit -Vs- Nirmal Chander (1984) 2 SCC 286, Vidya Devi -Vs- Prem Prakash, (1995) 4 SCC 496, R.Chandevarappa vs. State of Karnataka, (1995) 6 SCC 309, D.N.Venkatrayappa vs. State of Karnataka, (1997) 7 SCC 567, Karnataka Board of Wakf -Vs- Government of India, (2004) 10 SCC 779, T. Anjanappa -Vs- Somalingappa, (2006) 7 SCC 570, P.T. Munichikkanna Reddy -Vs- Revamma, (2007) 6 SCC 59, Hemaji Waghaji -Vs- Bhikhabhai, (2009) 16 SCC 517, State of Haryana -Vs- Mukesh Kumar and others, (2011) 10 SCC 404 and G. Krishnareddy -Vs- Sajjappa, (2011) 13 SCC 226.
4. D.N.Venkatrayappa covers not only the doctrine of adverse possession but also how it has to be applied to the PTCL Act. Their Lordships observed that:
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"3. The petitioners, admittedly, had purchased the property in the years 1962-63 from the original allottees. The Government have allotted those lands as per Saguvali Chit containing prohibition of alienation of the land. Subsequently, the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 was enacted totally prohibiting the alienation up to a particular period. The proceedings were initiated against the petitioners for ejectment under said Act. All the authorities have concurrently held that the alienation in favour of the petitioners was in violation of the above rules and the said Act and hence the sales are voidable. When the case had come up before this court, this Court while upholding the constitutionality of the Act directed the authorities to go into the question of adverse possession raised by the petitioners. The learned Single Judge has extracted the pleadings on adverse possession of the petitioners. Therein, the High Court had pointed out that after the purchase of the lands made by them, they remained in possession and enjoyment of the lands. What requires to be pleaded and proved is that the purchaser disclaimed his title under which he came into possession raised by the petitioners. The learned Single Judge has extracted the pleadings 9 on adverse possession of the petitioners. Therein, the High Court had pointed out that there is no express plea of adverse possession except stating that after the purchase of the lands made by them, they remained in possession and enjoyment of the lands. What requires to be pleaded and proved is that the purchaser disclaimed his title under which he came into possession, set up adverse possession with necessary animus of asserting open and hostile title to the knowledge of the true owner and the latter allowed the former, without any let or hindrance, to remain in possession and enjoyment of the property adverse to the interest of the true owner until the expiry of the prescribed period. The classical requirement of adverse possession is that it should be nec vi, nec clam, nec precario".
Since the possession in the present case was for 17 years only, the period of prescription had not been complied with. It had been opined that this plea is available only where possession is hostile to the parties against whom it is claimed, which in this case is the State and not the grantee. For a complete discussion on the essentials of the plea of adverse possession we rely on the 10 decision in G.M.Venkata Reddy vs. The Deputy Commissioner (W.A.No.1736/2009 (SC/ST) decided on 23.5.2012.
5. The learned counsel for the Appellant has sought to predicate his case on Guntaiah Vs. Hambamma (2005) 6 SCC 228 which, in our view, actually demolishes the case of the Appellant and the relevant discussion is extracted below -
"13. In any case, 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 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. That is the sum and substance of Section 4 which has not been duly considered by the High Court.
14. It is also pertinent to note that the prohibition regarding alienation is a restrictive 11 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 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, 12 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 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 13 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 constitute any unreasonable restriction on the right of the grantees to dispose of the granted lands. The imposition of 14 such a condition on prohibition in the very nature of the grant was perfectly valid and legal.
15. 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 is thus not sustainable in law. The impugned judgment is set aside, the order passed by the learned Single Judge is upheld and these appeals are allowed. The Authorities shall take appropriate steps pursuant to the order passed by the Authorities under Act 2 of 1979 within a period of three months.....".
6. The decision in Siddegowda Vs. Assistant Commissioner AIR 2003 SC 1290 is also germane to the issue before us. It appears to us that on the strength of the exposition of the law made by the Apex Court the Appellant has no locus standi to challenge any of the terms of the grant, including the prohibition for non-alienation of the granted land in perpetuity. The concurrent finding is that the grant was made free of costs to a member of a Scheduled Caste (Adi Dravida); that the land could not be alienated forever. This being the position, Section 15 5(3) of the PTCL Act comes into operation thereby shifting the burden of proof on to the Appellant to establish that the sale transaction in favour of his father by the father of of Respondent No.3 was not null and void. Learned counsel for the Appellant has sought to rely on Rule-43 of the Mysore Land Revenue Amendment Rules 1960 which prescribes the period of only 15 years within which the sale is prohibited. However, it is not the 1960 Rules which apply to the present grant which was made in the year 1942 at which point of time permanent non-alienation was the rule.
The Appeal is devoid of merit and it is dismissed with costs of Rs.5,000/-.
Sd/-
CHIEF JUSTICE Sd/-
JUDGE Vr