Karnataka High Court
Sri Thimmaiah vs The Deputy Commissioner on 10 September, 2012
Author: Ajit J Gunjal
Bench: Ajit J Gunjal
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 10TH DAY OF SEPTEMBER, 2012
BEFORE
THE HON'BLE MR. JUSTICE AJIT J GUNJAL
WRIT PETITION No.26773 OF 2009 (SC/ST)
BETWEEN:
SRI.THIMMAIAH
AGE: 55 YEARS
S/O LATE CHIKKAIAH
R/AT ANCHEBEERANAHALLI
KIKKERI HOBLI, K.R.PET TALUK
MANDYA DISTRICT ...PETITIONER
(BY SRI PUTTASIDDAPPA, ADVOCATE
FOR POORNA LAW ASSTS., ADVOCATES)
AND:
1. THE DEPUTY COMMISSIONER
MANDYA DISTRICT
MANDYA
2. THE ASSISTANT COMMISSIONER
PANDAVAPURA SUB-DIVISION
PANDAVAPURA
3. SMT.GIDDAMMA
AGE: 63 YEARS
W/O LATE MUDLAIAH
4. SRI.RAJAIAH
AGE: 42 YEARS
S/O LATE MUDLAIAH
5. SRI.NAGAIAH
AGE: 40 YEARS
S/O LATE MUDLAIAH
2
6. SRI.PUTTASWAMY
AGE: 35 YEARS
S/O LATE MUDLAIAH
7. SRI.CHANDRASHEKAR
AGE: 30 YEARS
S/O LATE MUDLAIAH
RESPONDENTS 3 TO 7 ARE
R/OF ANCHEBEERANAHALLI
KIKKERI HOBLI, K.R.PET TALUK
MANDYA DISTRICT ... RESPONDENTS
(SRI.ANJANA MURTHY, HCGP FOR RESPONDENTS 1 & 2
SRI.N.S.SANJAY GOWDA, ADVOCATE FOR RESPONDENT
NO.5, RESPONDENTS 3, 4 AND 6 - SERVED)
****
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF CONSTITUTION OF INDIA PRAYING TO QUASH
THE IMPUGNED ORDER DATED 30.6.2009IN CASE
NO.PTCL.13/2006 PASSED BY RESPONDENT NO.1 - DEPUTY
COMMISSIONER, MANDYA DISTRICT, MANDYA, WHICH IS
PRODUCED AT ANNEXURE-G, ETC.
THIS PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:-
ORDER
The petitioner is questioning the order passed by the Deputy Commissioner reversing the order passed by the Assistant Commissioner.
2. The facts in brief are:
The Assistant Commissioner at Pandavapura Sub- 3 Division granted an extent of land measuring 4 acres 04 guntas in survey No.36 of Anchebeeranahalli Village, Kikkeri Hobli, K.R.Pet Taluk, Mandya District, in favour of the father of the petitioner, as he belonged to the depressed class i.e. Adi Dravida community. The said grant is dated 3.2.1960. Pursuant to the said grant, the Tahasildar has issued a grant certificate, a copy of which is made available at Annexure-'B'. Out of the total extent of 4 acres, an extent of 2 acres of land was sold in favour of one Mudlaiah i.e. husband of respondent No.3 and father of respondents 4 to 7, pursuant to a registered sale deed dated 10.8.1970. The petitioner claims that the said transaction is illegal, in as much as, it violates the terms of the grant. It is the case of the petitioner that the sale has taken place within the prohibited period of 15 years from the date of grant. Hence, the sale is in violation of the provisions of the Act. Consequently, an application is moved under Section 5 of the Act, seeking restoration on the ground that the transaction is illegal. The said application is seriously opposed by the purchasers on the ground that the non-
alienation period is only for a period of 10 years, in as much 4 as the land was granted at an upset price. The said contention did not find favour with the Assistant Commissioner, who granted the application of the petitioner and directed the restoration.
As against the order passed by the Assistant Commissioner, the purchasers were before the Deputy Commissioner. The Deputy Commissioner in the appeal has recorded a finding that since the land was granted at an upset price, the non-alienation period will be 10 years, having regard to Rule 43(6)(a)(ii). Hence, accepted the appeal and set aside the order passed by the Assistant Commissioner. Aggrieved by the said order, the legal heir of the original grantee is before this Court.
3. The learned counsel for the petitioner submits that the grant certificate itself discloses that the non-alienation period is 15 years. Hence, in the circumstances the finding recorded by the Deputy Commissioner that non-alienation period is to be construed as 10 years, is incorrect. Hence submits that the sale is hit by the provisions of the Act. 5
4. The learned Government Pleader submits that indeed if the land is granted at an upset price, non-alienation period would be 10 years, having regard to Rule 43(6)(a)(ii) of the Rules.
5. I have perused the order passed by the Assistant Commissioner, as well as the Deputy Commissioner.
6. It is not in dispute that the land was granted in favour of the original grantee at an upset price. The upset price was in the range of Rs.100/-. Indeed, whenever a grant is made at an upset price, Rule 43 of the Mysore Land Revenue Code, 1888 would be made applicable.
7. Rule 43(6)(a) reads as follows:
"43(6)(a) Every grant of land under Rule 43-A and every grant of registered occupancy of land under Clause (a) of Rule 43-H shall be subject to the condition:
(i) Where the grant is made free of cost, that the land granted shall not be alienated for a period of 15 years from the date of the grant; or
(ii) Where the grant is made for an upset price or for a reduced upset price, that the land 6 granted shall not be alienated for a period of 10 years from the date of the grant;"
8. A perusal of the said provisions clearly discloses that if the grant is made for an upset price, the non-alienation period would be for 10 years from the date of grant. In the case on hand, it is not in dispute that the land was granted in favour of petitioner's father on 3.2.1960 and the sale has taken place on 10.8.1970 i.e. after lapse of 10 years and 6 months, to be precise.
9. It is also noticed that once the land is granted for an upset price, what governs is the Rules and not what has been stated in the grant certificate. The petitioner himself has produced the certificate granting the land at an upset price, a copy of which is produced at Annexure-'A'. The petitioner has been granted land at an upset price of Rs.50/-. Another contention raised by the learned counsel for the petitioner is that the permission has not been obtained by the competent authority. I am of the view that such situation would arise if the sale has taken place before the expiry of non-alienation clause or after the Act has come 7 into force on 1.1.1979. It is to be to be noticed that the Act came into force on 1.1.1979, so also the provisions of the Act. In the circumstances, the question of making applicable the provisions of enactment which is still not born cannot be made applicable to a sale which has taken place before the Act came into force. I am of the view that the question of interfering with the impugned order, in the circumstances does not arise, more so having regard to the fact that the sale has taken place after the non-alienation period.
No merit. Petition is rejected.
Sri.Anjana Murthy, learned HCGP is permitted to file memo of appearance within four weeks.
SD/-
JUDGE AHB