Karnataka High Court
Bandyamma vs Assistant Commissioner on 27 June, 1993
Equivalent citations: ILR1993KAR2694B, 1994(1)KARLJ1
ORDER NO. R. 2122 - 81/L.R. 368 - 28-5 DATED 12-9-1929 - Grant of lands always subject to condition of non-alienation, period varying from time to time - As on date of grant viz 27-10-1937 G.O. dated 12-9-1929 In force with period of non-alienation 20 years. Grant of Government lands in favour of persons of this Section was always subject to the condition of non-alienation for a specific period. Of course, that period varies from time to time. Even during 1938 when Rule 43(8) was amended by Notification No. R-2828-LR-89-38-10 dated 13-12-1938, the prohibition was permanent. Therefore, a condition not to alienate for certain period the lands granted to persons of weaker section was always imposed that at least for the said period, the grantees would enjoy the fruits of grant. Otherwise, the very object of grant to these people would become a negation.... The Government Order referred to above imposing the condition of non-alienation for a period of 20 years of the lands granted to depressed class was holding the field as on the date of the grant of the land in question [27-10-1937]. ORDER M. Ramakrishna, J.
1. The petitioner in this Writ Petition under Articles 226 and 227 of the Constitution has challenged the order, Annexure-A, made by the Assistant Commissioner, respondent-1 herein, and sought to quash it insofar as it relates to the rejection of restoration of the land to the petitioner, and the order, Annexure-B, made by the Deputy Commissioner, respondent-2 herein and has sought to quash the same for the reasons stated in the Petition.
2. The relevant facts necessary for the disposal of this Petition are as follows:-
4 acres of land in Sy.No. 48/2 (New No.56) situated in Kothanur village, Bangalore South Taluk, was granted by the competent authority under Darkhast in proceedings No. 13/36-37 dated 27-10-1937 in favour of Munidodda, father of the petitioner Bandyamma, subject to certain conditions, it is stated that Munidodda was a member of Scheduled Caste. Following the grant, saguvali chit was also issued to him. It is stated by the petitioner that one of the conditions imposed in the grant was that the grantee was restrained from alienating the granted land for a period of 20 years. Therefore, the grantee could not have sold the granted land during the period of prohibition of 20 years.
It is undisputed that Munidodda, however, sold the granted land in favour of Channamma, respondent-5 herein, under a registered Sale Deed dated 20-1-1949 for valuable consideration and that subsequently Channamma sold the land to Kamalaraja Shetty, respondent-6 herein, who leased the land in favour of respondent 3 and 4 herein.
It is again undisputed that these respondents 3 and 4 claiming to be the tenants of the land in question filed an application in Form-7 under Section 48-A of the Karnataka Land Reforms Act, 1961 (the Act of 1961 for short) for registering them as occupants thereof, and that the Land Tribunal concerned having held an enquiry granted occupancy rights in their favour as prayed for. It is on record that the appeal filed as against the order of the Land Tribunal granting occupancy in favour of respondents 3 and 4 is still pending.
According to the petitioner, though the land was alienated by Munidodda, original grantee, he continued to be in possession and enjoyment thereof till his death and thereafter she has been in possession and enjoyment of the same. Therefore, according to her, in the meanwhile, she approached the Assistant Commissioner with an application for restoration of the land to her under Sections 4 and 5 of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 (the 'Act' for short) on the ground that her father Munidodda transferred the land in favour of Channamma in contravention of the terms of the grant and that therefore she was entitled to restoration of the same.
On the said application, the Assistant Commissioner initiated proceedings, issued notice to the parties interested, held an enquiry and disposed of the matter by his order, Annexure-A, dated 21-2-1989 declaring the alienations of the granted land in question as null and void under Section 4 of the Act on the ground of contravention of the condition of the grant and directing vesting the land to the Government as, according to him, the petitioner failed to prove that she was the daughter of Munidodda, original grantee so as to enable her to get back the land.
Aggrieved by the said order, respondents 3 and 4 filed an appeal before the Deputy Commissioner, who having heard the learned Counsel on both sides allowed the appeal and set aside the order of the Assistant Commissioner on the ground that the Rules under which the land was granted to Munidodda did not provide for imposition of any condition prohibiting the grantee from alienating the granted land and that being the position the grantee being free to dispose of the land granted to him, at any time, question of contravention of the condition of the grant did not arise and hence the alienations in question being valid in law could not be interfered with.
Aggrieved by this order as also the order of the Assistant Commissioner refusing to restore the land to the petitioner, she has filed this Writ Petition seeking to set aside the said orders on more than one ground.
3. I have heard the learned Counsel on both sides including Sri Siddagangaiah, learned High Court Government Pleader, appearing for respondents 1 and 2 herein.
4. Learned Counsel for the petitioner urged two points in support of the Writ Petition. They are : (1) The learned Deputy Commissioner erred in holding that there was no provision in the relevant Land Grant Rules, under which the land in question was granted to Munidodda, providing for imposition of a condition of non-alienation of the granted land to a certain period and that therefore the alienations in question effected in the absence of restrictions could be valid. He submitted that at no point of time lands belonging to the Government were granted to persons belonging to Scheduled Castes and Scheduled Tribes, earlier, prior to the advent of Constitution, called "depressed class" without imposing conditions of non-alienation for certain period as it was felt necessary, as observed by the Supreme Court in MANCHEGOWDA v. STATE, ILR 1984 (2) KAR 1 : 1984(2) KLJ 1 in order to protect and preserve the economic interests of persons belonging to this section and to prevent their exploitation. Relying upon the Government Order No.R. 2122-81/ L.R. 368-28-5 dated 12-9-1929 he argued that although no condition was imposed in the grant at the time of grant of the land in question, the above Government Order which was in force as on the date of grant provides for imposition of conditions for a period of 20 years in the grant of land to persons belonging to Scheduled Castes and Scheduled Tribes. Therefore, regard being had to this condition, the alienation of the granted land made by Munidodda in favour of Chinnamma being within the prohibitory period of 20 years, the Assistant Commissioner was justified in declaring the alienation as null and void; but the Deputy Commissioner was in error to take a decision to the contrary.
(2) The evidence on record amply proves that the petitioner is the daughter of late Munidodda, original grantee. Therefore, the Assistant Commissioner was not justified in coming to the conclusion that she failed to prove her relation with Munidodda and accordingly in directing vesting the land to the Government.
5. Sri Siddagangaiah, learned High Court Government Pleader, appearing for respondents 1 and 2, supporting the order of the Assistant Commissioner to the extent it declared the transfer of the granted land as null and void, argued that the Government Order referred to above being operative as on the date of the grant of the land in question, in the absence of any other provision to the contrary, it must be taken that the grant in favour of Munidodda was subject to non-alienation of the granted land for a period of 20 years. The said Munidodda having transferred the land granted to him within the restricted period, the Assistant Commissioner was justified in declaring the transfer as null and void and therefore the order of the Deputy Commissioner with a contrary view cannot be sustained and the same is liable to be quashed.
6. Per contra, learned Counsel appearing for respondents 3 and 4 argued supporting the order of the Deputy Commissioner. He further argued that assuming for the purpose of argument that it was a grant subject to non-alienation for 20 years and that the transfer being within the said period of prohibition, was void under Section 4 of the Act, yet right or title to the land in question acquired by respondents 3 and 4 being tenants thereof by virtue of the grant of occupancy by the competent authority, viz., the Land Tribunal, under the Act of 1961 which is also a special legislation relating to inter alia conferment of ownership on tenants, cannot be defeated and the Act of 1961 also having similar overriding provisions under Section 138 and enacted earlier to the Act prevail over it and hence their possession and enjoyment of the land in question cannot be interfered with. In other words, the contention is that the Assistant Commissioner has no jurisdiction to hold an enquiry in respect of this land.
7. The two Points therefore that arise for my Consideration in this Writ Petition are -
(1) Whether this Writ Petition calls for interference with the impugned orders?
(2) Whether the Assistant Commissioner has no jurisdiction to invoke the provisions of the Act in view of the provisions of the Act of 1961 in particular Section 138 thereof?
8. My answer on the first Point is in the affirmative and second in the negative for the following reasons.
9. First I will take up the second Point for consideration, in W.P.No. 18193 of 1990 disposed of on 16-6-1993 O. Dyanappa v. Appanna Bori similar point arose for consideration. I considered the question at length with reference to the provisions of law and the authorities thereon and answered it in the negative and against the tenants therein holding that for the reasons stated therein the Act of 1961 irrespective of its overriding provisions under Section 138 thereof must yield to the Act and hence the Assistant Commissioner had the jurisdiction to invoke the provisions of the Act to declare the transfers made in contravention of the conditions of the grant as null and void under Section 4 of the Act and to direct restoration as provided under Section 5 of the Act. Thus, the point involved in this Petition also being similar, my answer in the aforesaid Writ Petition holds good for this Petition also.
10. Now to consider the question whether the Deputy Commissioner was justified in setting aside the order of the Assistant Commissioner on the ground that there was no provision at that particular point of time providing for imposition of condition of prohibition to alienate the granted land for certain period and that in the absence of prohibition, the transfers effected were valid and legal, it is necessary to extract the Government Order referred to above. It reads:
"ORDER NO.R. 2122-81/LR.368-28-5 dated 12 September, 1929.
With a view to speed up the disposal of darkhasts and to prevent the possibility of interested parties exploiting the ignorant members of the Depressed Classes, the Deputy Commissioner, Chitradurg District, suggested the introduction of the system of granting lands to them on a "restricted tenure" on condition that the grantees should not alienate them without the permission of the Deputy Commissioner, and stated that this system was prevalent in certain parts of the Bombay Presidency. The Revenue Commissioner who was consulted in the matter is not in favour of introducing this innovation. He however states that according to the existing standing orders grants made to Adikarnatakas are subject to the condition that the grantees should not alienate them for a period of 10 years, and that to further safeguard their interest the period may be raised suitably, if need be, upto a maximum limit of 20 years. Government agrees with the view of the Revenue Commissioner, and direct that the first proposal be dropped and the period within which the lands should not be alienated be raised from 10 to 20 years."
11. It is undisputed that for the purpose of grant of Government lands in favour of citizens in the erstwhile Mysore State, certain Rules came to be framed under the Mysore Land Revenue Code. Those Rules were called "Mysore Land Grant Rules." It is also undisputed the said Rules underwent radical changes from time to time. In BASAPPA v. STATE, traced the history of the Rules right from 1938 upto-date. Nowhere during this period or earlier to it there is provision for grant of Government lands to depressed class subsequently called 'Scheduled Castes and Scheduled Tribes' without a condition as regards alienation of the granted lands. That means, grant of Government lands in favour of persons of this section was always subject to the condition of non-alienation for a specific period. Of course, that period varies from time to time. Even during 1938 when Rule 43(8) was amended by Notification No.R-2828-LR-89-38-10 dated 13-12-1338, the prohibition was permanent. As already observed, such restrictions, limitation or prohibition in the grant of this kind was felt necessary in the interests of those persons who were being exploited, because of their poverty, lack of education and general backwardness, by various persons who could and would take advantage of the sad plight of these poor persons for depriving them of their lands. Therefore, a condition not to alienate for certain period the lands granted to persons of weaker section was always imposed that at least for the said period, the grantees would enjoy the fruits of grant. Otherwise, the very object of grant to these people would become a negation. That being the position, to say that at the time of the grant of the land in question, there was no Rule providing for impositi5on of condition of non-alienation of the granted land and therefore the transfers effected in respect of such lands were legal and valid, is nothing but illogical. In the absence of the evidence to the contrary, I hold that the Government Order referred to above imposing the condition of non-alienation for a period of 20 years of the lands granted to depressed class was holding the field as on the date of grant of the land in question.
As regards the essentiality of the condition and the power of the grantor to impose such a condition, the Supreme Court in Manchegowda's case has held as follows:-
"...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.
(emphasis is supplied).
Unfortunately, in the instant case, no saguvali chit is produced to ascertain the condition of prohibition on transfer imposed on the specific term of the grant itself. However, the Assistant Commissioner fact finding authority who had the benefit of going through the original records, has stated in his order that the grant of land in favour of Munidodda was subject to non-alienation of the granted land for a period of fifteen years. Therefore, it has to be inferred that the competent Authority did impose such a condition at the time of grant. It has to be accepted as correct in the absence of evidence to the contrary. Undisputedly, the land was sold within the said prohibitory period of 15 years. Therefore, it amounts to contravention of the condition of the grant attracting the provisions of Sections 4 and 5 of the Act. The Assistant Commissioner rightly annulled the said transfers as null and void under Section 4 of the Act. On the other hand, the order of the Deputy Commissioner with a contrary view as stated above cannot be sustained and is liable to be quashed for the aforesaid reasons.
12. Now coming to the contention taken for respondents 3 and 4 that the original grantee Munidodda died issueless and that therefore the petitioner Bandyamma not being the daughter of Munidodda cannot claim restoration of the land under the Act, I have to notice it only to be rejected, inasmuch as though the Assistant Commissioner has not recorded a categorical finding on this question, perusal of the statement of Thippaiah, contesting respondent-3 herein, made before the Land Tribunal, Bangalore South Taluk, on 10th December, 1986 in Case No. LRF.4707-2759/75 shows that he has clearly admitted that Bandyamma, petitioner herein, is the daughter of Munidodda, the original grantee. Therefore, this contention is rejected. However, it is made clear that if there is any dispute amongst the legal representatives of late Munidodda. it is open to them to approach the Civil Court for declaration of their rights. In view of the proved fact that Bandyamma is the daughter of original grantee Munidodda, she is entitled to restoration of the land and the order of the Assistant Commissioner to the extent it rejected the request for restoration of the land to Bandyamma and directed vesting the land to the Government is liable to be quashed.
13. In the result and for the reasons stated above, I make the following ORDER This Writ Petition is allowed. The order, Annexure-B, made by the Deputy Commissioner is hereby quashed. The order of the Assistant Commissioner in so far as it relates to the rejection of request for restoration of the land and direction to vesting it to the Government is also hereby quashed. Rest of the order remains undisturbed. The Assistant Commissioner is hereby directed to restore the land to Bandyamma, petitioner herein, as required by Section 5 of the Act. Ordered accordingly.
ORDER DATED 27-8-1993
1. On 31-7-1991 this Writ petition was heard and Judgment reserved. Thereafter, after the Judgment was ready, the matter was posted for pronouncement of orders on 23-6-1993. That day when the order was about to be pronounced at 2.30 P.M., it was brought to the notice of the Court that on 16-4-1993 a Memo had been filed by the petitioner seeking permission to withdraw the Writ Petition as having been dismissed. Thereafter, the matter was adjourned to 28-6-1993 when the petitioner appeared before the Court and submitted that she had signed the Memo seeking to withdraw the petition and that therefore she might be permitted to withdraw the petition as dismissed. However, at the request of the learned High Court Government Pleader, the matter was adjourned for consideration on the memo. On 16-7-1993 none appeared and therefore the matter was adjourned. To-day the matter has come up before Court for orders on the Memo and also for pronouncement of order on the main matter.
2. Learned Counsel for the petitioner submits that in the light of the Memo filed by the petitioner, permission may be granted to withdraw the Writ Petition as dismissed. However, Sri Siddagangaiah, learned High Court Government Pleader, opposed the prayer made by the learned Counsel for the petitioner. He submits that he prepared a detailed counter and sent it to the Law Department for approval. He has produced a copy of the counter opposing the Memo for withdrawal.
3. Admittedly, the petitioner Bandayamma, is the daughter of Munidodda, original grantee of the land in question. Aggrieved by the order made by the Assistant Commissioner refusing to restore the land to the petitioner and that of the Deputy Commissioner setting aside the order made by the Assistant Commissioner and upholding the alienations made by the original grantee, the petitioner has filed this Writ Petition. If the Memo for withdrawal filed by her is accepted and the Writ Petition dismissed as withdrawn, the following consequences would ensue.
The order made by the Deputy Commissioner subject matter of the Writ Petition, will remain alive. In other words, if that order is allowed to remain which is found to be patently illegal, the very object of the Act will be defeated. Besides, the Assistant Commissioner, fact finding authority, found that the alienation effected by the original grantee was contrary to the condition of grant and accordingly declared the alienations as null and void and directed vesting the land with the Government, as, according to him, the petitioner-applicant failed to prove that she was the daughter of the original grantee. Once the land stands vested in the Government, the interest of the State becomes paramount consideration and thereafter it Is for the Government to grant such land to a person belonging to any of the Scheduled Castes or Scheduled Tribes in accordance with the rules relating to grant of land as envisaged in Clause (b) of Section 5(1) of the Act. It reads:
"(b) restore such land to the original grantee or his legal heir. Where it is not reasonably practicable to restore the land to such grantee or legal heir, such land shall be deemed to have vested in the Government free from all encumbrances. The Government may grant such land to a person belonging to any of the Scheduled Castes or Scheduled Tribes in accordance with the Rules relating to grant of land."
Therefore, even if the petitioner does not want the land to be restored to her, the alienation of which having been declared as void, it is for the State Government which has got paramount interest in the land having regard to the object of the Act to dispose of it in accordance with the Rules relating to the grant of land subject to the provisions aforesaid. Having regard to the facts and circumstances of the case, if the Court permits the petitioner to withdraw this Writ Petition seeking to quash the order of the Deputy Commissioner, which is, as already stated, bad in law, not only the illegality will be perpetuated but also the very object of enactment of the Act will be defeated. Therefore, it is not possible for the Court to act upon the Memo and to permit the petitioner to withdraw the Writ Petition as dismissed.
4. Indeed, this Court under Article 226 of the Constitution has abundant power to reject such a prayer in the matter involving public policy and to maintain Judicial discipline so that the very object behind the enactment the Constitutional validity of which has been upheld by the Supreme Court will be achieved.
5. For the reasons stated above, the Memo filed by the petitioner for withdrawal of this Petition is liable to be rejected and is accordingly rejected.
6. Now I will proceed to pronouncement of Orders. It is accordingly pronounced - vide the Order above.
7. Let a copy of this Order be sent to the Chief Secretary to Government of Karnataka to take appropriate action in the event of the petitioner not inclining to accept the land.