Karnataka High Court
Pillanarasimhaiah vs The Deputy Commissioner on 10 July, 2014
Author: Ram Mohan Reddy
Bench: Ram Mohan Reddy
1
W.P.31162/14
IN THE HIGH COURT OF KARNATAKA, BANGALORE
DATED THIS THE 10TH DAY OF JULY, 2014
BEFORE
THE HON'BLE MR.JUSTICE RAM MOHAN REDDY
WRIT PETITION NO.31162/2014 (SC/ST)
BETWEEN:
PILLANARASIMHAIAH,
S/O MUNIVENKATAPPA,
AGED ABOUT 61 YEARS,
R/AT GOLLUCHINNAPPANAHALLI VILLAGE,
KASABA HOBLI, CHIKKABALLAPUR TALUK,
CHIKKABALLAPUR DISTRICT-562 101.
... PETITIONER
(BY SRI SHARATH S. GOWDA, ADV.)
AND:
1. THE DEPUTY COMMISSIONER,
CHIKKABALLAPUR TALUK,
CHIKKABALLAPUR-562101.
2. THE ASSISTANT COMMISSIONER,
CHIKKABALLAPUR TALUK,
CHIKKABALLAPUR-562101.
3. CHIKKANARASIMHAPPA,
S/O LATE MUNIVENKATAPPA,
MAJOR, R/AT CHALAKAAYALAPARTHI
VILLAGE, KASABA HOBLI,
CHIKKABALLAPUR TALUK,
CHIKKABALLAPUR-562101.
... RESPONDENTS
(BY SRI I.THARANATH POOJARY, AGA FOR R-1 & 2.)
2
W.P.31162/14
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF CONSTITUTION OF INDIA PRAYING TO QUASH THE
ORDER DATED 12.05.2014 PASSED BY THE R-1 VIDE ANN-A &
ETC.
THIS WRIT PETITION COMING ON FOR PRL.HEARING
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Learned counsel for the petitioner-purchaser submits that land measuring 3 acres in Sy.No.27 of Kurubaragere village, Kasaba Hobli, Chikkaballapur taluk, when granted under the Land Grant Rules and a grant certificate issued on 24.12.1955 in favour of one Palakala Narasimhappa, belonging to the scheduled caste, laced with a condition of non-alienation for a period of 15 years, was conveyed under a registered sale deed dated 2.4.1969, well within the period of non alienation, following which was a conveyance by yet another sale deed dated 2.5.1973 and the purchasers in turn conveyed the said property in favour of the petitioner under a registered sale deed dt. 23.8.1985, while the representation dated 16.1.2008 is of a person claiming through the grantee, hence the orders 3 W.P.31162/14 impugned of the Assistant Commissioner and that of Deputy Commissioner in appeal suffer from the following legal infirmities:
(a) that the representation did not seek declaration as null and void the sale deed dated 2.5.1973;
(b) that the representation dated 16.1.2008 was highly belated though The Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 came into force w.e.f. 1.1.1979 and;
(c) that the persons who made the representation dated 16.1.2008 are not the legal heirs of the deceased grantee Palakala Narasimhappa.
2. Having heard the learned counsel for the petitioner, perused the pleadings and examined the orders impugned, there is no more dispute over facts.
The submission that there is inordinate delay in making a representation dated 16.1.2008 to hold an enquiry 4 W.P.31162/14 under the provisions of The Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 for short 'Act', to declare as null and void the transaction of sale of granted land, on the premise that the Apex Court in the case of Ningappa -v- Deputy Commisioner in Civil Appeal No.3131/2007 observed that if there is inordinate delay in questioning the transfer of the granted land, as illegal, under the Act, no relief is permissible cannot be countenanced in the light of the decision of the Division Bench in Sri.G.M.Venkata Reddy -v- Deputy Commissioner, Kolar and others 2012 (6) Kar 3168 observing thus:
"31. In WA.No.4574/2011, a parcel of land admeasuring 04-00 acres in Survey No.22/2 of Chennasandra village, Uttarahalli hobli, Bangalore South Taluk was granted to Shettappa son of Kariyappa on 18.09.1944 by Grant Order No. DCD.1/44-45/SDO No.DIS, B-4/Dar.18/44-45. The survey records mention that "land out of this survey number was granted by darkasht for dry cultivation by Hon'ble Sub-Divisional Officer vide SDO.No.B4.Dar.18/44-45.5 W.P.31162/14
Measurements are made to the extent of the grant and recorded in the original copy".
The entries made in Mutation Register No.1/67-68 is to the effect that "land is granted to Shettappa, S/o. Kariyappa, resident of Channasandra, vide No. DIS.B4/DAR.18/44-45, 18.09.1944." Despite these facts, the say of the Appellant is that the land was "originally belonging to Shri Shettappa". It is not in dispute that Shettappa had executed a Sale Deed on 21.08.1967 in favour of 4th respondent to an extent of 02 acres 05 guntas; thereafter by Sale Deed dated 07.01.1970 in favour of 5th respondent to an extent of 0-06 guntas; then by Sale Deed dated 22.05.1974 to an extent of 02-00 acres in favour of 6th respondent. These respondents thereafter executed Sale Deeds on 29.10.1976, 28.11.1984 and 30.08.1988 and eventually in favour of the Appellant on 17.12.1994, whereafter the Appellant is in possession and enjoyment of the entire land of 04.00 acres. The Assistant Commissioner, Bangalore south taluk, suo motu initiated proceedings under the PTCL Act and issued notices to all the persons including the Appellant's predecessor in interest namely, H.S. Rama Rao. The first salvo of litigation included a challenge to the vires of the PTCL Act which was unsuccessful in terms of Manchegowda. The Appellants have purchased the land after these events transpired and could not but had complete knowledge of the various transactions vis-à- vis the land. On 23.07.2007, the Assistant Commissioner, acting on the entries in the 6 W.P.31162/14 survey records as well as the mutation records, ordered the resumption of the land in favour of the original grantee or his legal heirs, because of violation of Section 4 and 5 (1) (b) of the PTCL Act. The Appeal to the Special Deputy Commissioner, Bangalore District was dismissed by an Order dated 16.03.2011. The Appellate Authority noted that there was no denial that the land in question was "granted land" in favour Shettappa who belonged to a Scheduled Caste, and further that the Saguvali Chit came to be issued on 18.09.1944. On the strength of these contemporaneous documents, and in view of the Rule 43(8) of the Mysore Land Revenue Code 1888 (revised upto 13.02.1940), it was held that the grant enjoined and mandated non- alienation in perpetuity. The Deputy Commissioner applied the law in Smt. Ramamma -Vs- Deputy Commissioner, 1991 (3) Kar. L.J 24. Violation of Section 4(1) of the PTCL Act was reiterated and it was concluded that since the first alienation itself was null and void, all the subsequent alienations during 1974, 1976, 1984, 1988 and 1994 were also void. These findings of fact have attained finality and no error of law or perversity can be detected. In the impugned order, the Writ Court has upheld the concurrent findings recorded by the Authorities below and consequently had dismissed the writ petition with costs of `10,000/-.
ii) The PTCL Act came into force on 01.01.1979. While it is arguable that the 7 W.P.31162/14 transactions which occurred prior thereto and which did not offend any of the terms of the grant were beyond the purview of the said statute, the transfers after 01.01.1979 must conform to Section 4(2) of the PTCL Act which mandates the obtainment of the Government's prior permission for transfer of any granted land. In the case in hand, the Sale Deeds are dated 28.11.1984, 30.08.1988 and 17.12.1994 and facially violate Section 4(2) of the PTCL Act, and are consequently null and void. The Appellant should have applied for permission from the Government under Section 4(2), since it is beyond dispute that it was purchasing granted land under any of the sub rules of Rule-43. The arguments which have been addressed before us would then have been proffered before the Government and answered by it. Having failed to apply for permission under Section 4(2) of the PTCL Act; as was the statutory requirement, the Appellant is precluded from advancing these arguments before any of the authorities or Court below. The Appeal deserves dismissal on this short/primary ground alone.
iii) Learned Senior Counsel for the Appellant has argued extensively and in detail on the interpretation that has to be given to Rule 43 of the Mysore Land Revenue Rules framed under Section 233 of the Mysore Land Revenue Code 1888. These Rules have been amended from time to time including by the Mysore Land Revenue (Amendment) Rules 1960 which completely changed Rules 43 (1) to 43 M. The 8 W.P.31162/14 Karnataka Land Revenue Act 1964 repealed the Mysore Land Revenue Code 1888 and thereupon the Karnataka Land Revenue Rules 1966 and the Karnataka Land Grant Rules 1969 etc., came into force which is to be found in fascicule titled "Grant of Occupancy" [Section 58, 60 and 233 (h) and
(n)]. It is necessary to reproduce Rule 43 as it existed at the relevant time i.e., as amended by the Government Order No.R2433-LR.104-30-7, dated 28th November 1931 for facility of reference -
"43 (1) All lands shall be sold by public auction after observing the prescribed formalities. But it shall be in the discretion of the Deputy Commissioner in special cases to grant an occupancy at an upset price to any bona fide applicant who is an agriculturist or proposes to cultivate the land himself, when he is satisfied that, in the event of a public auction being held, advantage may be taken of the needs of the applicant to force up the price. Lands so granted shall not, however, exceed ten acres in extent or `200 in value. If it is proposed to give lands exceeding this extent or value to any applicant for upset price, the previous permission of the Revenue Commissioner shall be obtained in cases where the extent does not exceed twenty acres and the market value of the land is within `500. In cases exceeding these limits, the sanction of Government 9 W.P.31162/14 shall be necessary for the grant of lands at an upset price. These concessions are not to be shown to absentees, and to people speculating in lands.
(2) The "upset price" shall not be arbitrarily fixed but shall represent the actual market value of the land as nearly as it can be ascertained by local enquiries and by the examination of records of sales of similar lands in the neighbourhood, and if necessary, of the registration statistics relating to them.
Amildars are empowered to sanction either free or for upset price to landless members of the Depressed classes, two acres of cultivable dry land, though the entire extent including the phut kharab when phoded may be in excess of two acres provided the value of the land does not exceed `25. The Sub-Division Officers may similarly grant lands not exceeding four acres in extent to landless members of the Depressed classes provided the value does not exceed `50.
(3) The Amildars should in variably obtain the orders of his superior officers in regard to the disposal of lands irrigated or likely to be irrigated by large irrigation projects. The Department of Public Works should, as soon as possible, 10 W.P.31162/14 after any project is taken up for investigation or consideration, notify to the Revenue Department either generally or specially, the land which will be affected by the project.
(4) In all cases of grant of occupancies whether for a price or not, a sum equivalent to the cost of the boundary marks which have been or may have to be constructed on the land shall be invariably collected from the grantees in accordance with instructions issued by Government from time to time. The Deputy Commissioner will, however, be allowed to waive this charge in cases of extreme poverty of the applicants.
(5) Notwithstanding anything hereinbefore stated, the Deputy Commissioner may, at his discretion, grant to applicants belonging to the depressed classes who are bona fide agriculturists or propose to cultivate the land themselves, lands at half the upset value, the amount being recovered in not more than five annual installments. Where half the upset price is below `75 the price to be recovered from the grantee maya be limited to the excess, if any, of the estimated value of the land over `75. In cases where the upset value does not exceed `75, he may waive the recover of price altogether.
11 W.P.31162/14(6) Grant of lands to applicants of the depressed classes may be made on the following Shraya rates, as a further concession.
First year.. Free of assessment Second year .. One-fourth do Third Year .. Half do Fourth year .. Full do (7) No single applicant or family shall be ordinarily given land exceeding five acres in extent or `100 in value, but where it is proposed to grant a larger extent or lands of a higher value, the sanction of the Revenue Commissioner or Government shall be obtained as in the case of lands given for upset price under other circumstances.
N.B - The concessions contemplated in the rule should be granted only to the members of the depressed classes who are regarded as Hindus.
Note - Depressed classes in the above paras include Adikarnatakas, Adidravidas, Banajaras, Voddars, Korachars, Koramars, Hill Tribes, Animists and members of the Pishari, Mochi, Iruliga, Dombar, Handijogi and Budubudike Communities.
(8) Occupancies granted to applicants belonging to Depressed classes under Rule 43 (5) above and those granted by Government free or upset price or reduced upset price to 12 W.P.31162/14 poor and landless people of other communities or to religious or charitable institutions shall not be alienated and the grantees shall execute mutchalikas in the form prescribed by Government. This shall not, however, prevent lands granted to Depressed classes under Rule 43 (5) being accepted as security for any loan which they may wish to obtain from Government or from a Co-operative Society for the bona fide purposes of improving the land.
(9) (a) Lands containing ten or more sandal trees of over 12" in girth per acre should be reserved to Government or disposed of only in consultation with the Forest Department.
(10) Lands containing smaller number of such developed trees may be granted for cultivation under the Orders of the Deputy Commissioner, who before passing orders should get a complete list of both trees and plants of sandal in the land and consider the desirability or otherwise of granting the said land keeping in view the intention of Government to reserve all lands containing thick sandal growth.
In the case of grants to poorer classes, this condition may be relaxed by the Deputy Commissioners with the concurrence of the Conservator or 13 W.P.31162/14 the Chief Conservator of Forests, as the case may be, and the recovery of the present value of the bonus waived, on the grantee executing a mutchalika to the effect that he will have no claim to any bonus on account of sandal trees on the land and that he will take proper care to maintain the trees growth in good condition.
N.B.- The Sub-Division Officers are empowered to sanction either free or for upset price to landless members of the Depressed classes, two acres of cultivable dry land, though the entire extent including phut kharab when phoded may be in excess of 2 acres, provided the value of the land does not exceed `25."
iv) The argument of learned Senior Counsel for the Appellant is that since the Grant had been made by the Sub Divisional Officer it would fall under Rule 43 (2) in respect of which no moratorium for transfer has been prescribed. It is contended that unlike Rule 43(1) and 43 (5), the land envisaged under sub-rule (2) is cultivable dry land, and the grant can be made even for free. Further, an attempt had been made by the learned Senior Counsel for the Appellant to unravel the rational behind these three provisions and his endeavour is to draw the distinction that so far as grants made under Rule 43 (2) are concerned they pertain to dry land which, theoretically would therefore not be freely and easily sellable. We are unable 14 W.P.31162/14 to appreciate this submission since Rule 43(8) clearly states that where a grant is made free of upset price or reduced upset price to poor and landless people, it shall not be alienated and could have exempted from its sweep foregoing sub Rule (2), but conspicuously does not do so. We therefore, find no merit in the contentions urged by the learned senior counsel. The writ Court has found no foundation for assuming that the Grant was made under Rule 43 (2) and has rightly rejected the arguments, as the Appellate Authority, had also done. The learned Single Judge rejected this as the only possible assumption, only because grant has been made by the Sub Divisional Officer. The emphasis on the other hand has been laid on the original grantee belonging to the depressed class (now the Scheduled Caste).
v) The decision in Papaiah vs. State of Karnataka (1996) 10 SCC 533 really sounds the death knell to the Appellant's cause. Five acres of land were allotted on 13.02.1940 under Rule 43(8) of the Mysore Land Revenue Code. The application under Sec.4 and 5 of the PTCL Act for restoration of the land was filed on 22.04.1984, i.e., after 45 years of the Grant, and after 28 years of the execution of the Sale Deed on 19.12.1958. We can do no better than rely on paragraphs 8 to 10 of the decision extracted supra (See pp 33-35 above).
vi) An argument of desperation has then been raised founded on an overwriting 15 W.P.31162/14 on the date i.e., 23.03.2011 or 23.02.2011. Based on this it is contended that the hearing was preponed and was concluded behind the back of the Appellant. It seems to us that the original date must have mentioned the month of February which was changed to the month of March; Order is dated 16.03.2011. Therefore, no credence could be attached to the said submission.
vii) As has been repeatedly held by us, the burden on proving the alienable character of the Grant land lies on the purchaser; there is a rebuttable presumption to the contrary. The Assistant Commissioner, the Deputy Commissioner being the Appellate Authority, and the learned single Judge have concurrently concluded that the burden of proof has not been discharged by the Appellant. No material has been placed before us to persuade us to the controversy. It has also been argued that the observations in the Order passed in Ningappa -Vs- Deputy Commissioner, Civil Appeal No. 3131 of 2007 would enure to the benefit of he Appellant. In the wake of the plentitude of precedents in which the law has been discussed in detail we are unable to apply mere observations made in an Order dated 14.07.2011 of a two Judge Bench, to which his Lordship Katju. J, was privy, which has been palpably pronounced en passant. If this order is to be accorded precedential status, it is facially per incuriam, ironically to the elaboration and enunciation of law available in P.T. Munichikkanna Reddy -Vs-
16 W.P.31162/14Revamma, 2007(6) SCC 59, to which His Lordship Katju. J., was a party. Our attentions has been drawn to Kunhayammed
-Vs- State of Kerala (2000) 6 Supreme Court Cases 359 to bring home the difference between the dismissal of the Special Leave Petition before and after the grant of leave, regardless of whether it is a non-speaking order or a judgment. Assuming that Ningappa is a judgment, we hasten to clarify that it is not reconcilable to a series of earlier judgments and is therefore per incurrium.
The Appeal is devoid of merit in view of the concurrent findings against the Appellant. Costs should be imposed in the normal course but we desist from doing so."
3. The submission of the learned counsel for the petitioner that there was no request to declare as null and void the sale transaction dated 2.5.1973 by the purchaser of the land from Palakala Narasimhappa and therefore, the orders of the Assistant Commissioner and in appeal by the Deputy Commissioner call for interference, cannot be countenanced. Admittedly the land was granted on 24.12.1955 with a non alienation condition of 15 years which would end on 23.12.1970, 17 W.P.31162/14 while the first transfer of land was on 2.4.1969 in favour of Jayamma, well within the non alienation period and therefore was struck by the provisions of subsection (1) of Section 4 of the Act and hence justifiably declared as null and void. If that is so, all other transactions thereto cannot but be said to be null and void since the purchasers under subsequent transactions did not acquire a better title than what was conveyed under the sale transaction dated 2.4.1969, since declared null and void. In any event, the executors of the sale deed dated 2.5.1973 being the legal heirs of Jayamma divested their right, title and interest in the land after a conveyance in favour of Sonnappa, the vendor-in-tile of the petitioner, who too divested his right, title and interest in the property, in favour of the petitioner.
4. The last submission of the learned counsel does not merit consideration. Restoration of the land to 18 W.P.31162/14 the legal heirs of the grantee, it is needless to state, must be preceded by an enquiry, since Section 5(1)(a) of the Act refers to restoration of the land to the original grantee or his legal heirs. Therefore, it is for the authority under the 'Act' to make enquiry as to whether the persons who made the representation dated 16.1.2008 or any other persons were legal heirs of the deceased grantee, entitled to restoration after resumption. Petitioner who acquired no right, title or interest in the immovable property cannot allege that the land is restored, after resumption, in favour of a person not being the legal heir of the deceased grantee.
When such a right to question the resumption is not vested under the Act, in favour of the petitioner, the submission is meritless. It is needless to point out that if the authority concludes that there are no legal heirs of deceased Palakala Narasimhappa, the original grantee, then the land shall be deemed to have vested in the 19 W.P.31162/14 Government free from all encumbrances, in terms of Section 5(1)(b) of the Act.
5. In the result, there being no merit in the petition is, accordingly rejected.
Sd/-
JUDGE ln.