Karnataka High Court
Thangavelu Gounder vs The Deputy Commissioner, Shimoga ... on 17 August, 1998
Equivalent citations: 1999(2)KARLJ77, 1999 A I H C 178, (1999) 2 KANT LJ 77 (1999) 2 LACC 1, (1999) 2 LACC 1
Author: Mohamed Anwar
Bench: Mohamed Anwar
ORDER
1. Heard.
2. Petitioner is the purchaser of 1 acre 37 guntas out of the land measuring 2 acres 17 guntas bearing Sy. No. 2/1, of Bhadrapura Village in Bhadravathi Taluk, Shimoga District which was granted under dharkhast to the husband of respondent 3 the late Thimmappa on 4-1-1964. He prays to quash the order at Annexure-A dated 12-1-1989 of respondent 2-Assistant Commissioner and the order dated 27-11-1997 of respondent 1-Deputy Commissioner produced as Annexure-B whereby he is directed to be evicted from the said purchased land for the purpose of its restoration to respondent 3 under Section 5 of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 ('the Act' for short).
3. It is an undisputed fact that the said land measuring 2 acres 17 guntas was granted to respondent 3's late husband Thimmappa with a condition not to transfer it for a period of 15 years and that within this prohibited period 1 acre 37 guntas thereof was sold by him to petitioner on 12-8-1970. After the grantee's his death, when respondent 3 made an application before the Assistant Commissioner, he passed his impugned order which in appeal was confirmed by the Deputy Commissioner, holding that the said sale in petitioner's favour was null and void in view of Section 4 of the Act, and as such, respondent 3 was entitled to resumption thereof.
3-A. The grant of the land to respondent 3's husband having been made on 4-11-1964 the relevant rule prohibiting this transfer for a specified period is sub-rule (4) of Rule 43-G of the Mysore Land Revenue (Amendment) Rules, 1960, which is extracted below;
"43-G. Grant of lands under the preceding rules shall be subject to the following conditions.-
(1).....
(2).....
(3).....
(4) Where the grant is made free of cost, or is made at a price which is less than the full market value, the grant shall be subject to the condition that the land shall not be alienated for a period of fifteen years from the date of the grantee taking possession of the land, after the grant:
Provided that.....".
This provision is self-explanatory. It makes it clear that its applicability is attracted to the alienation of such of the granted lands whose grant was made to the grantee free of cost, or at a price which is less than the full market value. Furthermore, applicability of provisions of the Act, it is a condition precedent that the grantee must be a member belonging to the Scheduled Caste or Scheduled Tribe. The impugned order of the Assistant Commissioner discloses that he has failed to record his definite findings on merits of the admissible material available or made available on record, whether or not the grantee-respondent 3's husband was a member belonging to Scheduled Caste or Scheduled Tribe; and, if so, whether the land granted to him was either free of cost or for a price which was less than its full market value, so as to invoke the aid of Rule 43-G(4) of the said rules.
4. As regards the nature of grant of the land the Deputy Commissioner has made a pertinent observation in his impugned order to the effect that there was no material available on record throwing sufficient light on this point. His observation is reproduced below:--
Therefore, without more, both the impugned orders of the authorities below are patently vitiated for want of definite findings based on admissible and dependable material on the points whether the grantee was a member belonging to the Scheduled Caste or Scheduled Tribe; and whether the grant of the land made to him was free of cost or at a price which was less than its full market value. As a result, their orders are liable to be quashed and the matter requires to be remitted to Assistant Commissioner for his fresh enquiry.
5. Hence, the petition is allowed. The impugned order Annexure-A, dated 12-1-1989 of the Assistant Commissioner and the order dated 27-11-1997 at Annexure-B of the Deputy Commissioner are quashed. The matter is remitted to the Assistant Commissioner with a direction to hold fresh enquiry and pass fresh order in the light of the observations made hereinabove and according to law after giving sufficient opportunity of hearing to both parties. He shall conclude his enquiry within 6 months from the date of communication of this order.