Karnataka High Court
Smt Salamma W/O. Nandyalappa @ ... vs The Special Deputy Commssioner on 14 August, 2012
Equivalent citations: 2012 (4) AIR KAR R 475
Author: Vikramajit Sen
Bench: Chief Justice, Aravind Kumar
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 14th DAY OF AUGUST 2012
PRESENT
THE HON'BLE MR.VIKRAMAJIT SEN, CHIEF JUSTICE
AND
THE HON'BLE MRS. JUSTICE ARAVIND KUMAR
WRIT APPEAL No.516/2009 (SC-ST)
BETWEEN
Smt. Salamma,
W/o Nandyalappa @ Nanjundappa,
Aged about 58 years,
R/at Nagadevanahalli,
Kengeri Hobli,
Bangalore South Taluk .... APPELLANT
(By Sri T.M.Venkata Reddy, Advocate.)
AND
1. The Special Deputy Commissioner,
Bangalore District,
Bangalore.
2. The Assistant Commissioner,
Bangalore South Sub-Division,
Kids Kemp Building,
Bangalore-560 009.
3. Sri L.Puttalingaiah,
S/o late Lingaiah,
Aged about 50 years
2
4. Sri L.Muddalingaiah,
S/o late Lingaiah,
Aged about 45 years
5. Sri L.Chikkalingaiah,
S/o late Lingaiah,
Aged about 44 years
6. Sri L.Krishna,
S/o late Lingaiah,
Aged about 43 years
4 to 6 are residing at:
Nagadevanahalli village,
Kengeri Hobli,
Bangalore South Taluk. ... RESPONDENTS
(By Sri B.Veerappa, AGA for R-1 & 2; Mr. R.V.Jayaprakash for R-3
to 6)
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 29686/2004 dated 21.11.2008.
This writ appeal having been heard and reserved for
pronouncement of judgment, this day, the Chief Justice delivered
the following:
JUDGMENT
Vikramajit Sen, C.J.
This Appeal assails the order dated 21.11.2008 in terms of which the learned Single Judge had dismissed the writ petition of the widow of the original grantee of land measuring 4 acres in Sy.No.26 (New Sy. No.109/2) in Block 3 and 4 at Nagadevanahalli village, 3 Kengeri Hobli, Bangalore South Taluk. The original grantee and his widow belong to the scheduled caste community. It appears that the Grant was made on 31.10.1961; it was confirmed by the Deputy Commissioner on 6.8.1969; and the Saguvali chit was executed on 2.2.1970. The Grant was at a so called 'upset' price of `75/- per acre and contains a covenant prohibiting alienation for a period of 15 years. Well before the expiry of this period, 2 acres from the granted land was sold on 30.5.1974; it was almost immediately sold again on 5.6.1974; and finally yet again on 6.2.1978 to late Lingaiah whose four sons are respondent nos. 1 to 4 in this Appeal.
2. At the conclusion of the Appeal we have been informed by learned counsel for the contesting Respondents that the entire land stands acquired. Therefore the only dispute remaining between the parties is with regard to who is entitled to the compensation. Had we learnt of this state of affairs at the commencement of the hearing we may have preferred to refer the contestants for adjudication of their claims before the Court under Section 30 and 30A of the Land Acquisition Act, 1894. Having heard the matter in detail, we must eschew taking recourse to this convenient alternative as it would inexorably lead to further litigation. The litigation already has a 4 chequered history. The Assistant Commissioner had restored the land to the Grantee by his order dated 20.7.1998 and the appeal filed thereafter to the Deputy Commissioner was dismissed on 7.2.2000. Thereupon Writ Petition 7086/2000 was preferred by the purchaser and by order dated 4.2.2003 the matter was remanded for further consideration by the Deputy Commissioner. This time around, the Deputy Commissioner in terms of order dated 31.5.2004 allowed the appeal which resulted in the filing of the writ petition in which the impugned orders have been passed. We deprecate the practice of repeatedly remanding disputes which course is always welcomed by the purchasers since they are enjoying the possession of the land. It defeats the intendment behind the Grant as well as the objects of the Karnataka Schedule Caste and Schedule Tribe [Prohibition of Transfer of Certain Lands] Act, 1978 (PTCL Act for short).
3. The learned single Judge has relied on Puttaveeraiah vs. State of Karnataka 1996(3) Kar.L.J. 34 (DB), which we think is no longer the law in view of the pronouncements of the Apex Court. We say this because Guntaiah vs Hambamma (2005)6 SCC 228 completely answers, unfavourably to the cause of the Respondent, all the arguments raised on the latter's behalf, including the 5 interpretation which is to be imparted to Rules 43-G (4) of the Karnataka Land Revenue (Amendment) Rules 1960. Their Lordships have opined thus:-
"12. When the Rule itself says that where the grant is made free of cost or at a price which is less than the full market value, such grant shall be subject to the condition that the land shall not be alienated for a period of 15 years from the date of the grantee taking possession of the land after the grant, such conditions could be imposed on any grant made to the party.
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.6
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 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 7 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 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 8 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 constitute any unreasonable restriction on the right of the grantees to dispose of 9 the granted lands. The imposition of such a condition on prohibition in the very nature of the grant was perfectly valid and legal."
4. Even though Guntaiah unequivocally establishes that it is only the Grantee who can challenge the terms of a grant, it seems patently clear to us that if land is allotted to a member of the Scheduled Caste/Scheduled Tribe community at the market price, it would not be a favour or a benefit bestowed on them; the Grantee could as well have purchased land from the open market. Invariably the grant is made either for a consideration which is lower than the prevailing price, and or, most often, even free of charge since the scheme seeks to alleviate the sufferings of the socially ostracized or marginalized sections of our society. Ergo, it would be a contradiction in terms to equate "upset" price with market price. The Division Bench in Puttaveeraiah is no longer right in holding that the covenants concerning non alienation could not have been imposed, keeping the exposition of the law available in decisions of the Supreme Court in Siddegowda vs Asst. Commissioner (2003) 10 SCC 675: ILR 2003 KAR 1580 the law has been explained in these words:-
10
"5. Therefore, the crucial question is whether the grant in favour of Gungaiah was for the full market value or for any price lesser than that. The argument of the appellant's counsel is that upset price was fixed at Rs. 500/- per acre and that clearly reflected the full market value of the land. Our attention was also drawn to Rule 43(2) of the Mysore Land Revenue Code 1940 describing the mode in which the upset price shall be fixed. It says that:
"the 'upset price' shall not be arbitrarily fixed but shall represent the actual market value of the land, nearly as it can be ascertained by local enquiries and the examination of records of sales of similarly lands in the neighbourhood and if necessary of the registration statistics relating to them."
6. From the above rule, it is not possible to assume that upset price would always be the market value of the land. The upset price and market price are certainly different concepts and it may be true that in certain cases upset price may be the market value of the land. But that does not mean that upset price fixed shall always be equivalent to the market value of the land. There are no materials priced before us to show that Rs.500 fixed by the authorities was equivalent to the market value for 11 this land. It is also relevant to note that the appellant himself purchased this land within a period of three years from Gungaiah for a total sum of Rs.3,000/-. Therefore, we are unable to hold that the upset price fixed at Rs.500/- per acre was really the market value of the land. If that be so, the prohibition under Rule 43-G would apply. The Commissioner, did not take a plea that the upset price for the grant was really the market value of the land. The main contention raised before the first authority was that the grant did not contain a specific clause prohibiting alienation. Nevertheless the grant contained a clause that the further enjoyment of the land was subject to Land Revenue Code and Rules thereunder for the time being in force and other laws. Evidently, the provisions contained in the Mysore Land Revenue Code are applicable and the assignment in favour of the appellant was in contravention of Section 4 of the Act and we do not find any merit in the appeal. It is accordingly dismissed."
The learned Single Judge has in the impugned order unfairly concluded that the 'upset' price is equivalent to the 'market' price. 12
5. It is also apparent that the onus probandi has been shifted onto the grantee, contrary to Bhadrappa vs Tolacha Naik (2008) 2 SCC 104 where their Lordships after noticing the dicta in Guntaiah, stated that by virtue of Section 5(3) of the PTCL Act the burden lies on the person in possession of granted land to establish that his possession is valid in law. This burden has not been discharged by the purchaser in the case before us. Our analysis in this case discloses the following proposition of law:
a) 'Upset' price of lands granted to Scheduled Caste/Scheduled Tribe is only rarely and exceptional cases would correspond to the market price.
b) The Grantee alone can challenge the legal propriety of any covenant in a Grant; the purchaser has no locus standi to do so.
c) The burden of proof always weighs on the shoulder of the person in possession of granted land to prove the possession is legitimate.
6. The impugned Order is not sustainable for these myriad reasons. The effect is that the sales of the granted land are successively null and void, and therefore it is the Appellants who 13 are entitled to receive the compensation awarded consequent upon the acquisition of the land. The Appeal is allowed accordingly. There shall be no order as to costs since the Appellant's predecessor-in-interest has sold the land which he ought not to have done.
Sd/-
CHIEF JUSTICE Sd/-
JUDGE Snb/Vr