Karnataka High Court
Mayangaiah S/O Late Mayangaiah vs The Deputy Commissioner Mysore ... on 23 July, 2012
Bench: Chief Justice, Aravind Kumar
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
Dated this the 23rd day of July, 2012
PRESENT
THE HON'BLE MR.VIKRAMAJIT SEN, CHIEF JUSTICE
AND
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
WRIT APPEAL No.1876/2008 (SC-ST)
BETWEEN:
MAYANGAIAH
S/O LATE MAYANGAIAH
AGED ABOUT 50 YEARS,
R/O ANTHARASANTHE VILLAGE,
HEGGADADEVANAKOTE TALUK,
MYSORE DISTRICT. ...Appellant
(BY SRI P.MAHESHA, ADV.)
AND:
1. THE DEPUTY COMMISSIONER
MYSORE DISTRICT
MYSORE.
2. THE ASSISTANT COMMISSIONER
HUNSUR SUB-DIVISION,
HUNSUR,
MYSORE DISTRICT.
3. CHIKKANNAEGOWDA
S/O LATE SANNEGOWDA
AGED ABOUT 68 YEARS,
R/O SHIRANAHUNDI VILLAGE,
H.D.KOTE TQ., MYSORE DIST.
... RESPONDENTS
(BY SRI B. VEERAPPA, AGA FOR R1 & R2,
SRI SANTHOSH KUMAR M.B., ADV. FOR
SRI MAHENTHESH S. HOSMATH, ADV. FOR R3)
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THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE
ORDER PASSED IN THE WRIT PETITION No.21801/2005
DATED 23/10/2008.
THIS WRIT APPEAL COMING ON FOR HEARING THIS
DAY, CHIEF JUSTICE DELIVERED THE FOLLOWING:
JUDGMENT
VIKRAMAJIT SEN, C.J. (Oral) :
This appeal assails the order of the learned Single Judge who was pleased to quash the order of the Deputy Commissioner passed on 27.06.2005. The facts are that a grant of land was effected as far back as on 7.11.1951 in favour of the father of the appellant as he belonged to a scheduled caste. In the first round of litigation the Assistant Commissioner opined that the Grant contained a covenant of non-alienation for a period of 15 years. This point needs to be clarified immediately.
2. By notification dated 27.6.1938, the period of non- alienation was in perpetuity as per Sec.43(8) of the Mysore Land Revenue Code. By notification dated 4.8.1953 this period was reduced to 20 years by amendment to the very same statutory provisions. The position therefore between 1938 and 1953, all Grants prohibited alienation forever and after August 1953 prohibited transfer of the grant land for a period of 20 years. The sale in the present case occurred on 17.1.1969. If 3 there was a permanent non-alienation clause, or even if it attracted a 20 year prescription in both case, the sale being contrary to the terms of the Grant since it had taken place within even before completion of 20 year period it rendered sale as void. The view of the Authorities below that the period of non-alienation was 15 years, is totally incorrect.
3. On 27.8.1994, the widow of the original grantee approached the Assistant Commissioner under Section 5 of the Scheduled Caste and Scheduled Tribe (Prohibition of Transfer of Certain Lands) Act, 1978 (in short `the PTCL Act') who was pleased to dismiss the application on the erroneous ground that it had been preferred after fifteen years and this view was affirmed by Deputy commissioner. Thereafter, on 16.8.2001, another application for restoration of the possession of the granted land was filed this time by the son of the original grantee which was also dismissed on 28.2.2002 by the Assistant Commissioner. The Deputy Commissioner had recorded a categorical finding that the sale was in violation of the provisions of Sec.4(1) of the PTCL Act; inexplicably however, instead of striking down the sale, he was pleased to remand it back for fresh consideration by the Assistant Commissioner, Hunsur. Even before him, the principles of res judicata were pressed into action but he rightly repulsed 4 them on the ground that the purpose of the statute overrides such procedural considerations. Not satisfied with the Remand, the order of the Deputy Commissioner was assailed by way of Writ Petition. We are constrained to observe that in the vast and overwhelming majority of cases where the prayer is for the restoration of the granted land, proceedings are repeatedly remanded for fresh consideration leaving litigation to fester. This approach must be abjured since it defeats the purpose of the PTCL Act and invariably serves the interest of the party who has purchased and is in possession of the land contrary to the terms of the Grant or the 'Saguvali Chit'. Instead, in the peculiar circumstances which surrounded the PTCL Act each Authority or Court should endeavour to expeditiously resolve the matter instead of ordering Remands.
4. In the impugned order the learned Single Judge has opined that the order of the Assistant Commissioner dated 27.8.1994 had attained finality and therefore second application could not have been entertained. It has repeatedly been observed that PTCL Act does not and should not partake the nature of adversarial litigation. The rights which have to be adjudicated are, stricto senso, between the State on the one hand and the purchaser on the other. The endeavour of the PTCL Act is to protect the vesting of granted lands with the 5 `SC/ST' (or in pre-constitution epoch, the `depressed class') who were in dire need of protection and demanded measures to alleviate their misery. The State therefore devised to grant members of the depressed class or SC/ST tracts or parcels of land so that they could derive an income therefrom and set up their homesteads thereon. Resumption of land in the cases of erroneous or illegal alienation does not inexorably come to succor of the grantees alone. We say this because it is also possible for the State to resume the title as well as the possession of the land with the objective of granting it further to eligible SC/ST persons. Therefore, the principles of prescription ought not come into play. This interpretation is also obvious from a reading of Sec.5(1) of the PTCL Act which postulates - a) filing of an application by an interested person;
b) Receipt of information by the person (authorities) from any source; or c) Suo motu information. A period of limitation is prescribed only with regard to the filing of Appeals against an order passed by Assistant Commissioner and not for filing applications seeking restoration or initiating proceedings suo motu. We affirm the finding to this effect of the Single Bench in M.Nagrayanappa vs. Special Deputy Commissioner 2006(3) KLJ 225. This was also of the opinion of another Single Bench in the case titled R.Rudrappa vs. State 2000(1) KLJ 523, which we also affirm. Another Single Bench has held in like 6 vein in Sri Dyamappa vs. Deputy Commissioner 1999(4) KCCR 2693, where it has been observed that PTCL Act has been made with the object to extend protection to the weaker sections and exploited class.
5. The second point which weighed in the mind of the learned Single Judge was that the Deputy Commissioner had exceeded his jurisdiction in entertaining and thereafter quashing the orders of the Assistant Commissioner passed on 27.08.1994. In the light of the foregoing analysis, we do not subscribe to this understanding of the law.
6. The third consideration was that the Appeal that had been filed was considerably delayed and therefore, ought not to have been entertained. For the very same reasons, we are unable to affirm this conclusion. The learned Single Judge, it is interesting to note was not called upon to decide upon the aspect of applicability of principles of res judicata since two applications for restoration of possession of land had been filed in the present case; the first in point of time by the widow and the second by her son from the original grantee. Since this question has been agitated before us, we must record that we are of the opinion that as already been discussed in the context of the purpose and objectives of the 7 PTCL Act, the principle is inapplicable and the Court must proceed to implement the statute. This is also because the land belonged to the State and if the purpose of the Grant had been defeated the land should revert back to the State.
7. Our attention has been drawn to Harishchandra Hegde vs. State of Karnataka 2004(9) SCC 780 in which the object and purpose of the PTCL Act came to be restated. The Apex Court held that the statute "was enacted with the object enshrined in the preamble of the Constitution including the directive principles of State policy viz., for improving the social and economic conditions of persons belonging to weaker sections of the Society and in particular, those belonging to SC and ST categories." Another important aspect of the law was emphasized namely that because of existence of a non- obstante clause the provisions of any covenant in any agreement or in any other law or statute would have no application and would stand overridden. We say this in the context of the plea of limitation which has been canvassed before us.
The celebrated decision in Manchegowda vs. State of Karnataka 1984 (3) SCC 301 was relied on and we can do no better than to reproduce the salient parts thereof. 8
"18. The transferees of the granted lands from the original grantees, acquired the lands improperly and illegally in contravention of the condition imposed on such transfers. Such transferees must have been aware and must in any event be deemed to have been aware of the condition regarding the prohibition on transfer and they cannot be considered to be bona fide transferees for value. Such persons acquired in the granted lands only a voidable title which was liable to be defeated and possession of such lands could be resumed from such transferees. Such a person who only acquires a defeasible legal right cannot make a grievance of any violation of Art. 19(1)(f) of the Constitution, when the defeasible legal right is, in fact, defeated by appropriate legal action or by any suitable provision enacted in an Act passed by the competent legislature. It may further be noted that in most cases such transferees have after the transfer, which is liable to be avoided in accordance with law, enjoyed for a sufficiently long period the benefits of lands transferred to them before the lands could be recovered from them. Art. 19(1)(f), therefore, did not invalidate S. 4 of the Act.
19. We have earlier noticed that the title which is acquired by a transferee in the granted lands, transferred in contravention of the prohibition against the transfer of the granted lands, is a voidable title which in law is liable to be defeated through appropriate action and possession of such granted lands transferred in breach of the condition of prohibition could be recovered by the grantor. The right or property which a transferee acquires in the granted lands, is a defeasible right and the transferee renders himself liable to lose his right or property at the instance of the grantor. We have further observed that by the enactment of this Act and particularly S.4 and S.5 thereof, the Legislature is seeking to defeat the defeasible right of the transferee 9 in such lands without the process of a prolonged legal action with a view to speedy resumption of such granted lands for distribution thereof to the original grantee or their legal representatives and in their absence to other members of the Scheduled Castes and Scheduled Tribes Communities. In our opinion, this kind of defeasible right of the transferee in the granted lands cannot be considered to be property as contemplated in Art. 31 and 31-A. The nature of the right of the transferee in the granted lands on transfer of such lands in breach of the condition of prohibition relating to such transfer, the object of such grant and the terms thereof, also the law governing such grants and the object and the scheme of the present Act enacted for the benefit of weaker sections of our community, clearly go to indicate that there is in this case no deprivation of such right or property as may attract the provisions of Articles 31 and 31-A of the Constitution.
20. In the case of Amar Singh v. Custodian, Evacuee Property, Punjab(1),this Court while considering the provisions of Administration of Evacuee Property Act 1950 (31 of 1950) and the nature of right in the property allotted to a quasi-permanent allottee held that the interests of a quasi-permanent allottee did not constitute property within the meaning of Articles 19(1)(f),31(1) and 31(2) of the Constitution. This Court observed at p. 834:
"Learned counsel for the Petitioners has strenuously urged that underthe quasi-permanent allotment scheme the allottee is entitled to a right to possession within the limits of the relevant notification and that such right to possession is itself 'property'. That may be so in a sense.
But it does not affect the question
whether it is property so as to attract
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the protection of fundamental
rights under the Constitution. If the
totality of the bundle of rights of the
quasi-permanent allottee in the
evacuee land constituting an interest in such land, is not property entitled to protection of fundamental rights, mere possession of the land by virtue of such interest is not on any higher footing".
21. With the enactment of the Act, the voidable right or title of the transferee in the granted lands becomes void and the transferee is left with no right or property in the granted lands. The lands which are sought to be recovered from the transferees of the granted lands are lands in which the transferees cease to have any interest or property. The effect of the provisions contained in Ss. 4 and 5 of the Act is that the defeasible right or interest of the transferees in the granted lands is defeated and the voidable transaction is rendered void. We have earlier held that it is clearly open to the Legislature to declare void the transfers of granted lands in contravention of the condition of prohibition on transfer. As soon as such transfers are rendered void by virtue of the provisions of the Act, the transferee does not have any right in the granted lands so transferred, and possession is sought to be recovered of such lands in which the transferees have lost their right and interest. Therefore, the question of acquisition of any property by the State or any modification or extinguishment of right of property does not really arise and Art. 31-A cannot be applied. We are, therefore, of the opinion that there is no infringement of Art. 31 and Art. 31-A of the Constitution. We may further observe that this aspect has been carefully and elaborately considered by the learned Judges of the High Court while holding that Arts. 31 and 31-A are not violated."
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8. Learned counsel for the purchaser/respondent no.3 has sought to support his case on the decision in M.Nagabhushan vs. State of Karnataka 2011(2) KCCR 1517=2011(3)SCC 408. The observations made therein were not in the backdrop of the PTCL Act or any other cognate enactments.
9. In this circumstance, we are unable to subscribe to the view favoured by the learned Single Judge in the impugned order. The Deputy Commissioner had correctly concluded that the sale in favour of respondent no.3 was illegal. This being the position, there was no justification whatsoever to remand the matter back to the Assistant Commissioner for fresh consideration. Even at the expense of prolixity we shall reiterate that frequent remands defeat the purpose of the Act. In any event, by filing an Appeal against the order of remand Respondent no.3 cannot now be heard to contend that the matter should be remanded once again to the Deputy Commissioner or even further below. In fairness, this is not the request made before us.
10. In this circumstance, the Appeal is allowed. The impugned order is set aside. Since the sale has taken place contrary to the relevant provisions of non-alienation either in perpetuity or for a period of 20 years, it is illegal and is 12 accordingly held to be void. The State shall therefore, initiate immediate steps for resuming the possession of the land. In case of frequent transfers, the Division Benches of this Court have proffered the opinion that it becomes advisable to consider the appropriateness of granting the lands to some other persons of Scheduled Caste/Schedule Tribe status. In the present case, the legal rights of the original grantee have been assiduously fought for as his heirs have been fighting litigation for resumption and possession. Hence, we are of the considered view that the possession if it is not handed over to the appellant, the authorities shall ensure that possession is delivered to the appellant. It would therefore not be appropriate for the State to take back the possession of the land.
Parties to bear their own costs.
Sd/-
CHIEF JUSTICE Sd/-
JUDGE Sk/-