Karnataka High Court
Hanumanthaiah vs N. Ramegowda And Ors. on 18 January, 2002
Equivalent citations: ILR2002KAR2431, 2002(2)KARLJ569
Author: H. Rangavittalachar
Bench: H. Rangavittalachar
ORDER H. Rangavittalachar, J.
1. The writ petitioner who claims to be a grantee of 3 acres of land in Sy. No. 12 of H. Ranganathapura Village, Tarikere Taluk has challenged the order of the Deputy Commissioner vide Annexure-A by which order the Deputy Commissioner has set aside the order of the Assistant Commissioner, who had ordered the restoration of lands in favour of the petitioner.
2. The proceedings started by a direction of the Deputy Commissioner in case No. LND2.C.R. 194/96-97, dated 30-6-1998, to enquire "whether the terms of grant made in favour of the petitioner was violated and whether petitioner was a member of the Scheduled Caste and Scheduled Tribe Community".
3. The Assistant Commissioner after enquiry by his order dated 16-6-2000 has held that the terms of the grant has been violated and ordered resumption of the lands in favour of the writ petitioner.
4. This order came to be challenged before the Deputy Commissioner, Chickmagalur by the purchaser Ramegowda and Nanjundegowda by filing two separate appeals in case No. PTL.27/2000-01 and No. PTL.28/2000-01.
5. The Deputy Commissioner clubbed both the appeals and by his common order dated 29-5-2001 has allowed the appeals.
6. This order is challenged on the following grounds:
(a) the Deputy Commissioner has not discussed the appeal filed by the I respondent, in his order. Therefore there is no application of mind.
7. There is no merit in the said contention. As stated, the entire order of the Assistant Commissioner was challenged by 2 separate appeals filed by Hanumantegowda and Nanjundegowda, the alleged purchasers. These 2 appeals were clubbed and after noting the common facts, the Deputy Commissioner has held:
"The Assistant Commissioner was specifically directed by a previous order of the Deputy Commissioner on 30-6-1998 to give a specific finding whether the original grantees of land Narasaiah, Hanumantaiah and Mariyappa were members belonging to the Scheduled Caste and whether there was violation of the grant made attracting the application of the provisions made under Karnataka Scheduled Castes and Scheduled Tribes Act, 1978. But the Assistant Commissioner has not given any such finding besides Assistant Commissioner has dealt the matter in a hurry without asserting the identity of the previous grantees and the very sale alleged to have been executed is fictitious, therefore, I set aside the order of the Assistant Commissioner.
Thus by a reading of the order of the Deputy Commissioner, it cannot be said that the Deputy Commissioner did not deal with the Appeal No. PTL 26/2000-01, nor was there non-application of mind.
8. It was nextly submitted that the finding of the Deputy Commissioner that "There was no transfer of granted lands" is incorrect as admittedly the I respondent and the alleged purchaser Nanjundegowda were in possession of the "Granted Lands". It should therefore be held that they should be in possession of the "Granted lands", only under a "Transfer made by grantees" in view of the presumption of law under Section 5(3) of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act (hereinafter referred to as 'Act').
9. There is no merit in this contention also. In order to apply this presumption, two factors have to be established viz., that the lands were "granted lands" and possession of the land was in pursuance of a "Transfer".
10. "Transfer" has been defined under Section 3(e) of the Act.
"Section 3(e).--Transfer' means sale, gift, exchange, mortgage (with or without possession), lease or any other transaction not being a partition among members of a family or testamentary disposition and includes the creation of a charge or an agreement to sell, exchange, mortgage, lease or enter into any other transaction".
11. The definition of 'Transfer' is an exclusive definition and it applies to a person in possession under any of the transaction referred to in the definition viz., sale, exchange, gift, mortgage, lease etc. In other words, "Possession has to be traceable to some transaction like the one defined or to a transaction akin to it. But if the same is not traceable to any transaction then such a possession can be termed as the possession of a 'Trespasser' outside the definition.
12. Learned Counsel for the petitioner was unable to show the title under which the respondents were in possession. In fact the finding of the Assistant Commissioner is that the I respondent claims to be in possession under a "Fictitious sale deed not executed by the grantee or anybody". This finding is not disputed.
13. Hence when there was no transfer of "Granted Lands", it is obvious that the provisions of the Act has no application to the facts of this case. Therefore, the conclusions of the Deputy Commissioner cannot be faulted.
14. It was lastly contended by the learned Counsel that the Deputy Commissioner should have remanded the matter to direct the Assistant Commissioner to give a finding that the petitioner was a member of the Scheduled Caste and Scheduled Tribe Community.
15. The answer is that even though the Deputy Commissioner had directed the Assistant Commissioner in his previous order to enquire whether petitioner belongs to Scheduled Caste and Scheduled Tribe Community, but a reading of the order of the Assistant Commissioner does not indicate that any materials were produced by the writ petitioner before him to establish that he belonged to Scheduled Caste and Scheduled Tribe Community. Though the Assistant Commissioner has given a finding but the same is not based on any discussion or material. Under the circumstances, Deputy Commissioner has held that the finding of the Assistant Commissioner that petitioner was a member of the Scheduled Caste and Scheduled Tribe Community was not correct.
16. Even otherwise, when the basic ingredient for application of the provisions of Act, viz., that there was no Transfer of lands from the alleged grantee in favour of contesting respondent itself was absent no purpose would have been served by remanding the matter.
No merit.
17. Petition rejected.