Karnataka High Court
G Ramaiah vs The Society Of The Brothers Of Holy Cross on 18 July, 2012
Bench: Chief Justice, Aravind Kumar
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 18TH DAY OF JULY 2012
PRESENT
THE HON'BLE MR.VIKRAMAJIT SEN, CHIEF JUSTICE
AND
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
WRIT APPEAL NO.400/2007(SC/ST)
BETWEEN
G.RAMAIAH S/O LATE GURUVAIAH
AGED 65 YEARS, NOW R/A
BOOTANAHALLI, JIGANI HOBLI
ANEKAL TALUK, BANGALORE DISTRICT
... APPELLANT
(BY SMT. S.R.INDUMATHI, ADV., FOR
SRI P.KRISHNAPPA, ADV.,)
AND
1. THE SOCIETY OF THE BROTHERS
OF HOLY CROSS - A SOCIETY
REGISTERED UNDER THE PROVISIONS
OF THE KARNATAKA SOCIETIES
REGISTRATION ACT, 1960 WITH ITS
OFFICE AT NO.47, ST.MARKS ROAD
BANGALORE-1, REP BY ITS ADMINISTRATOR
BROTHER PHILIP NARONA
2. THE STATE OF KARNATAKA
REPRESENTED BY REVENUE SECRETARY
REVENUE DEPARTMENT
VIDHANA SOUDHA, BANGALORE
3. THE SPECIAL DEPUTY COMMISSIONER
BANGALORE URBAN DISTRICT
BANGALORE
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4. THE ASSISTANT COMMISSIONER
BANGALORE SOUTH SUB-DIVISION
BANGALORE
5. SRI K.T.JANAKIRAMAN, FIE
EXECUTIVE DIRECTOR
TURNKEY CONSTRUCTIONS (P) LTD.,
21, 11TH MAIN ROAD
MALLESWARAM, BANGALORE-3
... RESPONDENTS
(BY SRI H.KANTHARAJ, ADV., FOR R-1;
SRI B.VEERAPPA, AGA FOR R-2 TO 4;
R-5 - SERVICE HELD SUFFICIENT V/O
DATED 15.10.2008)
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF
THE KARNATAKA HIGH COURT ACT PRAYING TO SET
ASIDE THE ORDER PASSED IN WRIT PETITION
NO.45232/2002 DATED 17.01.2007.
THIS WRIT APPEAL COMING ON FOR HEARING THIS
DAY, CHIEF JUSTICE DELIVERED THE FOLLOWING:
JUDGMENT
Vikramajit Sen, CJ (Oral) This Appeal assails the order of the learned Single Judge passed on 17.01.2007 in Writ Petition No.45232/2002, whereby the concurrent findings of the Assistant Commissioner and the Special Deputy Commissioner were set aside and the matter was remanded for fresh consideration.
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2. The facts that emerge are that the land measuring 5 acres 20 guntas in Block No.59 of Survey No.67 of Boothanahalli Village, Anekal Taluk was granted in favour of the father of the Appellant namely, Sri Guruvaiah. Learned AGA, on the basis of Saguvali Chit which is in his possession, states that the Grant was made on 10.12.1960. We are making a special note of this submission for the reason that one of the contentions of the learned counsel for the contesting Respondent is that relevant documents had not been produced before the Revenue Authorities. It is not in dispute that Sri Guruvaiah sold the land on 30.01.1970 to Sri K.T.Janakiraman, who thereafter sold it to the contesting Respondent/Writ Petitioner on 25.07.1975. Subsequently, on the demise of Sri Guruvaiah, his son Sri G.Ramaiah, the Appellant before us, approached the Assistant Commissioner under the provisions of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 (hereinafter referred to as the 'PTCL Act' for the sake of brevity) for restoration of possession of the land and for declaring the sale as null and void. The Assistant Commissioner has pithily recorded that the recitals in the sale deed by which Sri Guruvaiah 4 sold the land to Sri K.T.Janakiraman mentioned that the land in question was a granted land, containing a non- alienation clause. There is a finding of fact that the land in question was granted in the year 1960-1961 and that the alienation was during the year 1969-1970, i.e., on 30.01.1970 and therefore contrary to Sections 4 and 5 of the PTCL Act. The Assistant Commissioner applied the ratio of S.V.Krishnappa vs State of Karnataka, 1984(2) KLC 339, which stands affirmed in Manche Gowda vs State of Karnataka, ILR 1984(2) Kar 1. Keeping all these factors in mind, the Assistant Commissioner had ordered re- possession of the land in favour of the original Grantee namely, late Sri Guruvaiah. This order came to be passed by the Assistant Commissioner on 26.06.1999.
3. The contesting Respondent before us, the Writ Petitioner before the learned Single Judge, thereupon filed an Appeal before the Special Deputy Commissioner, Bangalore District. In the operative part of the order, the Grant was fully considered. We think it relevant and appropriate to reproduce the following portions of the order;
"The very first contention of the Appellant that the land in question was granted during the 5 year 1950 and not in the year 1960-61 to Shri Guruvaiah. The very official memorandum No.M2.D.Dis.D.D.52/48-49, dated 18.4.1950 relied on by the Appellant demonstrates that the land in S.No.67 - 15 blocks of 4 Acres each along with other lands in several Survey Numbers in Bhootanahalli were granted to 65 persons belonging to Bovi Community (Voddars) free of upset price under Depressed Class concession rules. The recitals in the sale deed dated 30.1.1970 in favour of the 3rd Respondent clearly indicates that the land in question is a granted land. The very fact that the land in question was granted land is not denied by the Appellant, whether it is in the year 1950 or 1960. Further, the very order relied on by the Appellant itself clearly indicates that the lands were granted to the persons belonging to Bovi Community which is classified as Scheduled Caste and that late Guruvaiah - the original grantee. Further, the land was granted free of cost. According to the rules then existing, the lands granted free of cost shall not be alienated forever."
4. The objective behind the PTCL Act is indeed a laudatory one, which has been observed by the Apex Court on several occasions. The sections of Society who have been marginalised and impoverished for several generations 6 are granted lands so as to alleviate some of their sorrows. This section of Society is almost invariably illiterate and therefore vulnerable to the wills of educated and economically strong sections of the Society. The Grants that are made to the Scheduled Castes/Scheduled Tribes requires to be protected and for this reason, the Grants invariably contain non-alienation clauses, which are some time in perpetuity. Where the moratorium of sale is for lesser period, it has been clarified that if the sale takes place after the expiry of the moratorium, and before promulgation of the PTCL Act, the transaction would not be reopened. In the case in hand, the granted land, as per the concurrent and consistent findings of the Assistant Commissioner as well as the Special Deputy Commissioner, could not be alienated forever. The PTCL Act therefore clearly comes into operation.
5. We have seldom found such explicit consideration of the questions to be answered in the orders of the Assistant Commissioner or the Special Deputy Commissioner being the First Appellate Authority, as we have in the case in hand. It is for that reason that we have extracted portions from the order. It has been vociferously 7 argued that the Grant as well as the Saguvali Chit should have been produced. The answer to this is the second sentence of the extract above, which refers to the Official Memorandum produced by the contesting Respondent before the Appellate Authority i.e., Deputy Commissioner. It is inter alia on the basis of those documents that a finding of fact had been recorded that the land in question was a granted land upon which a permanent non- alienation clause had been imposed. The defence of the contesting Respondent, on a reading of the Writ Petition, is that keeping in perspective that the Grant was made in 1950, the first sale occurred after the expiry of the non- alienation period. As we have already observed, the covenant in the present case was for non-alienation in perpetuity. When the factum of Grant was not contested before the Assistant Commissioner as well as the Special Deputy Commissioner, the need to file the Grant or the Saguvali Chit did not arise at all. It is a legal platitude that where an admission is found, there is no further need to establish the facts and circumstances of the case. Furthermore, the document on which the contesting Respondent relies, as it must, contains these very recitals. In conclusion, we can do no better than reproducing 8 paragraph 7 of Chinde Gowda vs Puttamma, (2007)12 SCC 618 which in turn reproduces paragraph 14 of Guntaiah vs. Hambamma, (2005)6 SCC 228 as under;
"7. Similar issue was considered by this Court in Guntaiah v. Hambamma (2005)6 SCC 228. In para 14 it was stated as follows: (SCC pp. 234-35) "14. It is also pertinent to note that the prohibition regarding alienation is a restrictive covenant binding on the grantee. The grantee is not challenging that condition. In all these proceedings, challenge is made by the third party who purchased the land from the grantee. The third party is not entitled to say that the conditions imposed by the grantor to the grantee were void. As far as the contract of sale is concerned, it was entered into between the Government and the grantee and at that time the third-party purchaser had no interest in such transaction. Of course, he would be entitled to challenge the violation of any statutory provisions but if the grant by itself specifically says that there shall not be any alienation by the grantee for a period of 15 years, that is binding on the grantee so long as he does not challenge that clause, more so when he purchased the land, in spite of being aware of the condition. The Full Bench seriously erred in holding that the land was granted under Rule 43-J and that the 9 authorities were not empowered to impose any conditions regarding alienation without adverting to Section 4 of Act 2 of 1979. These lands were given to landless persons almost free of cost and it was done as a social welfare measure to improve the conditions of poor landless persons. When these lands were purchased by third parties taking advantage of illiteracy and poverty of the grantees, Act 2 of 1979 was passed with a view to retrieve these lands from the third-party purchasers. When Act 2 of 1979 was challenged, this Court observed in Manchegowda v. State of Karnataka: (SCC pp. 310-11, para 17) "17. Granted lands were intended for the benefit and enjoyment of the original grantees who happen to belong to the Scheduled Castes and Scheduled Tribes. At the time of the grant, a condition had been imposed for protecting the interests of the original grantees in the granted lands by restricting the transfer of the same. 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 10 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. Except on the basis of such a condition the grantor might not have made any such grant at all. The condition imposed against the transfer for a particular period of such granted lands which were granted essentially for the benefit of the grantees cannot be said to constitute any unreasonable restriction. The granted lands were not in the nature of properties acquired and held by the grantees in the sense of acquisition, or holding of property within the meaning of Article 19(1)(f) of the Constitution. It was a case of a grant by the owner of the land to the grantee for the possession and enjoyment of the granted lands by the grantees and the prohibition on transfer of such granted lands for the specified period was an essential term or condition on the basis of which the grant was made. It has to be pointed out that the prohibition on transfer was not for an indefinite period or perpetual. It was only for a particular period, the object being that the grantees should enjoy the granted lands themselves at least for the period during 11 which the prohibition was to remain operative. Experience had shown that persons belonging to Scheduled Castes and Scheduled Tribes to whom the lands were granted were, because of their poverty, lack of education and general backwardness, exploited by various persons who could and would take advantage of the sad plight of these poor persons for depriving them of their lands.
The imposition of the condition of prohibition on transfer for a particular period could not, therefore, be considered to constitute any unreasonable restriction on the right of the grantees to dispose of the granted lands. The imposition of such a condition on prohibition in the very nature of the grant was perfectly valid and legal."
6. Learned counsel for the contesting Respondent states that all that the learned Single Judge has done is to remand the matter. This order defeats the purpose of the Act, as much as it is closing one's eye to the purpose of the PTCL Act. A member of the Scheduled Caste/Scheduled Tribe must get immediate succor and relief. We therefore cannot sustain the impugned order, which is set aside. The orders of the Assistant Commissioner and the Special 12 Deputy Commissioner are confirmed. Parties to bear their respective costs.
Sd/-
CHIEF JUSTICE Sd/-
JUDGE bkv