Karnataka High Court
Maddurappa vs State Of Karnataka And Ors. on 23 November, 2005
Equivalent citations: 2006 (1) AIR KAR R 592, (2006) 4 KANT LJ 303
Author: D.V. Shylendra Kumar
Bench: D.V. Shylendra Kumar
ORDER D.V. Shylendra Kumar, J.
1. Petitioners are persons in whose favour an extent of 4 acres of agricultural land each in Sy. Nos. 92/2, 92/1 and 92/3 of Meesiganahalli in Kundana Hobli, Bangalore Rural District had been granted free of cost as persons belonging to Scheduled Caste Community in terms of a grant order dated 30-4-1963. Each of the petitioners had sold such lands within a couple of years though in terms of the grant order it had conditioned that the petitioners cannot part with the granted lands for periods ranging from 10 to 15 years.
2. The contesting respondents in these petitions viz., respondents 3, 4 and 5 in W.P. No. 1916 of 2005, respondents 3 and 4 in W.P. Nos. 1917 of 2005 and 1918 of 2005 who were the latest purchasers in a series of transactions and who were in possession of the respective lands in question, had been put on notice by the Assistant Commissioner in the year 1998-1999 at the instance of the petitioners who had moved the Assistant Commissioner for invalidation of such sale transaction for resumption of the lands to the State and restitution of the same to the petitioners/original grantees, in their applications under Section 5 of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 ('the Act' for short).
3. The Assistant Commissioner issued notices to the purchasers in possession of the lands, held an enquiry and noticing that the first sale transaction by the original grantee being within the prohibited period, the provisions of the Act are very much attracted that they are voided in terms of Section 4 of the Act and therefore declared to this effect and directed resumption of the lands in favour of the State and restitution to the original grantees in terms of the order dated 15-3-1999 Annexure-F in W.R Nos. 1916 of 2005 and 1918 of 2005 and Annexure-C in W.P. No. 1917 of 2005.
4. The purchaser, being aggrieved, preferred appeals to the Deputy Commissioner and met with success. The Deputy Commissioner set aside the order of the Assistant Commissioner and remanded the matter in terms of common order dated 15-10-2001, Annexure-G in W.P. Nos. 1916 and 1918 of 2005 and Annexure-D in W.P. No. 1917 of 2005.
5. On such remand the Assistant Commissioner again became active, held enquiry, heard the learned Counsels for the parties and again allowed the applications affirming his earlier view that the transactions are all voided and therefore resumption and restitution has to be put into operation in terms of his order dated 22-2-2003, Annexure-H in W.P. Nos. 1916 and 1918 of 2005 and Annexure-E in W.P. No. 1917 of 2005.
6. Yet again the aggrieved purchasers preferred appeals to the Deputy Commissioner. This time the Deputy Commissioner allowed all such appeals by order dated 13-12-2004, Annexure-H in W.P. Nos. 1916 and 1918 of 2005 and Annexure-F in W.P. No. 1917 of 2005 for the similar and identical reason that the land though had been granted in favour of the petitioners-grantees in the year 1963 by the Government, it was a land which had been originally granted in favour of one Ramaiah Koira who inturn had sold that land to one K.C. Ramaiah in the year 1955 or so; that as the said purchaser had defaulted in payment of land revenue, the land had been forfeited in favour of the State for such a default; that the revenue entries showed that the land as 'phada' i.e., in favour of the Government; that even assuming that it was a 'phada' the Government did not become the owner of the land and original owners or the persons claiming under the original owners had the right to seek restoration of the land in their favour on clearing the arrears of land revenue with incidental charges etc., in terms of Rule 119 of the Karnataka Land Revenue Rules, 1966 read with Sections 160, 161, 164, 165, 169 and 171 of the Karnataka Land Revenue Act, 1964; that there could not have been a fresh grant by the Government in the year 1963 of a land which had been earlier granted in favour of some other person and which had become only 'phada' and that as the purchasers had already initiated proceedings under the above provisions for restoration in their favour, the order passed by the Assistant Commissioner is liable to be set aside and in this view of the matter allowed the appeals.
7. The allowing of the appeals was not only for setting aside the order passed by the Assistant Commissioner for resumption and restitution, but, also one of dismissing the claim of the petitioners. It is aggrieved by these orders, the present writ petition is filed.
8. Submission of Sri K. Subbarao, learned Senior Counsel is that the Deputy Commissioner has taken into consideration an extraneous provisions of law; that the Deputy Commissioner acting as an Appellate Authority under Section 5-A of the Act could not have placed reliance on the provisions of Rule 119 of the Karnataka Land Revenue Rules to interfere or set aside the order passed by the Assistant Commissioner; that the Appellate Authority has abused the appellate power and has not functioned as an Appellate Authority in terms of Section 5-A of the Act; that the order passed by the Deputy Commissioner is clearly not sustainable and that the order passed by the Assistant Commissioner is fully in consonance with the provisions of the Act; that when once the Assistant Commissioner had noticed the factual position of a granted land having been transferred within the prohibitory period, there was no other choice for the Assistant Commissioner except to invalidate the sale transaction, resume the land and restitute it to the original grantees and such action is to be sustained and the order passed by the Deputy Commissioner is to be quashed.
9. Countering the submission of Sri Subbarao, Sri Prakash Hebbar, learned Counsel who appears for the contesting respondents in these petitions submits that the provisions of the Act are attracted only in respect of a transaction or a transfer involving a granted land and if it has to be termed as a granted land, it can only be in respect of a Government land which is granted by the Government; that the land in question in fact was measuring 14 acres 32 guntas when it was originally granted in favour of Ramaiah Koira. After such grant, the said land ceased to be a Government land and that the grant in favour of the earlier grantee had not been cancelled in any manner known to law. The mere fact that for arrears of land revenue in respect of such land, if the land is sought to be forfeited and if it had fallen phada, the right of the Government was only to sell such a land, realise the arrears of land revenue and pay the balance to the original owner; that the Government did not have full right to the entire land and in the present case, the Government had not even resorteu to auction sale; that the land could not have been granted to any other person much less any persons belonging to Scheduled Caste/Scheduled Tribe Community. Learned Counsel submits, therefore, the order passed by the Deputy Commissioner is sustainable as in the first instance, the very provisions of the Act are not attracted and if so, irrespective of the reasons assigned, the order passed by the Deputy Commissioner in appeal for setting aside the order passed by the Assistant Commissioner to effectuate the provisions of this Act has to be sustained.
10. It is alternatively contended by Sri Hebbar that the land which had been granted to the petitioners in the year 1963 was under the 'Grow More Food' scheme and is therefore governed by Rule 43-J of the Mysore Land Revenue Code, 1888 and if so, it cannot be one carrying any condition with it. Therefore, the very transfer by the grantees was not a transfer attracting the provisions of the Act and as such, if the order passed by the Assistant Commissioner has been set aside by the Deputy Commissioner, there is no need for interfering with such an order.
11. One another submission of Mr. Hebbar, learned Counsel for the respondents is that the provisions of the Act having come into force from 1-1-1979, any power to be exercised under this Act has to be exercised within a reasonable time; that the proceedings instituted in the year 1998 is an act which is too far in distance of time; that it is well-settled law, that any power should be exercised within a reasonable time and therefore the order passed by the Assistant Commissioner should be held to be bad in law and if that is the situation, the order passed by the Deputy Commissioner in appeal setting aside such an order does not call for interference and the writ petitions are to be dismissed.
12. In the present case, there cannot be any dispute that the lands in question are granted lands within the meaning of Section 3(1)(b) of the Act inasmuch as the Government granted this land to the petitioners as persons belonging to Scheduled Caste Community. The question is not as to whether the Government had good title or part title to the land, But, the Government grants it to a person belonging to Scheduled Caste Community in which event, it is a granted land. If the land is a granted land with conditions either in terms of the grant order or in terms of the rules governing such grants applicable during the relevant period and if the transfer is in violation of any of such conditions, the provisions of the Act are necessarily attracted. Thereafter the function of the Assistant Commissioner is to follow the procedure in accordance with the provisions of the Act. That is precisely what the Assistant Commissioner has done in this case.
13. It is not within the competence of the Assistant Commissioner to examine as to whether the land granted in favour of the persons belonging to Scheduled Caste was a grant which was in the ownership of the Government or otherwise. Such a question or consideration is alien to the provisions of the Act. The Deputy Commissioner could not have called in aid such logic and interfered with the order passed by the Assistant Commissioner. The Deputy Commissioner has gone astray in referring to the provisions of Rule 119 of the Karnataka Land Revenue Rules read with Section 160 of the Karnataka Land Revenue Act for the purpose of setting aside the proper and well-considered orders passed by the Assistant Commissioner.
14. Insofar as the second point urged by Sri Hebbar in concerned viz., the grant being one governed by Section 43-J, though the argument could have been good in the light of the ruling of a Full Bench decision of this Court, this view having been overruled by the Supreme Court in the recent decision in Guntaiah and Ors. v. Hambamma , the view of the Pull Bench cannot be held to be good law any more in terms of the ruling of the Supreme Court in the case of Guntaiah. Even in respect of grants for the purpose of 'grow more food' the conditions operate and not otherwise. The second point also fails.
15. So far as the third contention urged by Sri Hebbar is concerned, the Act per se does not indicate any period of limitation for the Assistant Commissioner either to entertain an application filed under Section 3 for taking action in terms of Section 4 or for taking suo motu proceedings. The Assistant Commissioner acts only as a statutory authority to give effect to the provisions which is a piece of social welfare legislation. It is the bounden duty of the Assistant Commissioner to examine an application under Section 5 of the Act as to when it is filed before him and it cannot be said that such an examination is an arbitrary one or belated in point of time when the statute itself has not prescribed any period of limitation for examination of such questions. The Legislature has not prescribed any period of limitation, perhaps, rightly so, having regard to the purpose of legislation. It is not for High Court to invalidate the action of the Assistant Commissioner only on the ground that the power under the provisions of Section 4 of the Act has been applied by the Assistant Commissioner 18 to 19 years after the Act has come into force. The contention is not tenable and cannot be accepted. While it is inevitable to set aside the order of the Deputy Commissioner as the Deputy Commissioner has allowed the appeals on irrelevant considerations calling in aid the provisions of law not applicable to the proceedings before him and as all the contentions urged on behalf of the contesting respondents to support the order of the Deputy Commissioner having failed, the impugned orders dated 13-12-2004, Annexure-J in W.P. Nos. 1916 and 1918 of 2005 and Annexure-F in W.P. No. 1917 of 2005 are hereby set aside. The orders of the Assistant Commissioner dated 22-2-2003 Annexure-H in W.P. Nos. 1916 and 1918 of 2005 and Annexure-E in W.P. No. 1917 of 2005 are all restored. The Appellate Order passed by the Deputy Commissioner is set aside. Rule issued and made absolute.
16. If the respondents are pursuing their rights under the provisions of the Karnataka Land Revenue Act before any other authority, that is a matter left to the respondents to pursue before such other authority. That cannot be a consideration for holding up disposal of the present writ petition nor was a consideration before the Deputy Commissioner, who had on a wrong understanding of the legal position called in aid such provisions for allowing the appeals. It is for this reason, the appeals are allowed. It is open to the contesting respondents to pursue their rights, if any, in the independent proceedings. The Assistant Commissioner to proceed further in accordance with law for resumption and restitution of the lands in favour of the grantees.