G.R. Byresh vs Deputy Commissioner

B.S. Patil, J.—In these two writ petitions, common order dated 30.08.2012 passed by the Deputy Commissioner, Bangalore District, thereby setting aside order dated 30.07.2010 passed by the Assistant Commissioner, Bangalore South Sub-Division, Bangalore, by allowing appeal filed by the legal representatives of the original grantee - late Nanjappa, is called in question.

Petitioner in W.P. No. 39189/2012 claims to be owner of an extent of 2 acres of land comprised in Sy. No. 53/2 having purchased the same from one Mohammed Khasim vide registered sale deed dated 28.05.1992. The said Mohammed Khasim - 4th respondent (deleted from the array of parties vide order dated 24.01.2014) in this writ petition had in turn purchased the property by way of registered sale deed dated 18.04.1973 from one Dasappa. The said Dasappa had in turn purchased the property from his brother Nanjappa - the original grantee vide registered sale deed dated 07.08.1936.

The land in Sy. No. 53 which was earlier sub-divided into Sy. Nos. 53/1 & 53/2 totally measured 3 acres 31 guntas situated at Pattanagere Village, Kengeri Hobli, Bangalore South Taluk. It was granted in favour of Nanjappa on 05.04.1926. The original grantee - Nanjappa moved jurisdictional Assistant Commissioner during the year 1979 seeking resumption and restoration of land alleging that the sale transactions whereunder the land was sold in favour of Dasappa and subsequently in favour of Mohammed Khasim and lastly in favour of the petitioner as narrated above were null and void being in violation of the provisions of Section 4 of the Karnataka Scheduled Castes & Scheduled Tribes (Prohibition of Transfer of Certain Land) Act, 1978 (for short, ''the Act'').

An order was passed on 06.11.1982 by the Assistant Commissioner allowing the application filed by Nanjappa. This was challenged by Mohammed Khasim in W.P. No. 42813/1982. He laid a challenge to the validity of the provisions of the Act also. This Court upheld the validity of the Act, but reserved liberty to the writ petitioner (Mohammed Khasim) to file an appeal against the order passed by the Assistant Commissioner before the Deputy Commissioner. However, an appeal was filed by Mr. T. Krishnaraju before the Deputy Commissioner in No. LND.ST(A)34/1984-85 challenging the order passed by the Assistant Commissioner. The said appeal was allowed and the matter was remanded for fresh enquiry before the Assistant Commissioner. Thereafter, the present petitioner purchased the land from Mohammed Khasim as per registered sale deed dated 28.05.1992 to an extent of 2 acres. After remand, the Assistant Commissioner vide his order dated 30.07.2010 dismissed the application holding that there was no violation of Section 4 of the Act. The said order was challenged before the Deputy Commissioner. The Deputy Commissioner by the impugned order dated 30.08.2012 has allowed the appeal setting aside the order passed by the Assistant Commissioner directing resumption of the land to the Government and restoration of the same to the legal representatives of the original grantee - Nanjappa Respondents 9 to 15 in this writ petition claim to be the legal representatives of deceased Nanjappa.

Petitioner in W.P. No. 37327/2012, claims to have purchased an extent of 1 acre 31 guntas and 9 guntas of kharab totally 2 acres of land comprised in Sy. No. 53 (Old Sy. No. 8/8) from T. Krishnaraju vide registered sale deed dated 06.03.2003. It is urged that based on the registered sale deed, petitioner got the land converted. He further contends that his vendor - T. Krishnaraju had purchased the property from Maramma, wife of Dasappa vide registered sale deed dated 09.09.1974. As already stated above, Dasappa had purchased this property from the original grantee - Nanjappa. In this writ petition, respondents 4 to 10 claim to be the legal representatives of the original grantee Nanjappa. Respondents 16 to 37 in this writ petition claim to be the purchasers of different sites carved out of the land purchased by the petitioner herein, under various registered sale deeds. They have come on record as additional respondents by filing application for impleading. They are represented by the learned counsel Mr. M.N. Umashankar.

Question raised in these writ petitions is with regard to the legality and correctness of the order passed by the Deputy Commissioner. The Assistant Commissioner has recorded findings holding that land in Sy. No. 53 was granted in favour of Nanjappa in the year 1932 and by virtue of the decision rendered by the Division Bench of this Court in the case of Mariyappa Vs. Dr. N. Thimmarayappa and Others, , the grant having been made during ''No Rule period'', there was no violation of any condition and therefore, the provisions of the Act were not violated. He has come to the conclusion that as the first alienation made on 07.08.1936 was not in violation of the provisions of the Act, question of declaring the subsequent alienations made as illegal would not arise. He has further found that as the alienation had taken place prior to 01.01.1949, according to the decision rendered in the case of V. Muniswamy v. Deputy Commissioner, Kolar District, Kolar & Others - 1993(3) KLJ 346, such alienees have perfected their right and title by adverse possession for a continuous period of more than 30 years as on 01.01.1979, the date on which the Act came into force and as such those alienations were not hit by the provisions of the Act.

The Deputy Commissioner has come to the conclusion that the land was granted in favour of Nanjappa as per Order No. 3-2D.226/26-27 dated 02.04.1926 and SDO. No. 148/26-27 dated 05.04.1926 and the alienations have taken place in the year 1936 and 1974. Referring to the Index of Lands, he has held that though the grant was made in the year 1926, it appeared that the grant was a temporary grant and as per the entries found in the Index of Lands, sanction for granting the land was accorded on 17.05.1962 in favour of Nanja son of Arasa and Dasappa son of Arasa. Hence, the Deputy Commissioner has observed that it could be inferred that the land in question was granted temporarily during the year 1926 and subsequently confirmed in 1942-43 as per the confirmation order dated 17.05.1962. Thus, the Deputy Commissioner has proceeded on the basis that the grant was made in the year 1962 and the sale deed executed on 07.08.1936 was of no consequence and the subsequent sale deed executed in the year 1974 was within the prohibited period, therefore, there was violation of Section 4 of the Act entailing resumption of the land to the Government and restoration of the same to the grantee.

I have heard the learned Counsel for the parties.

The main point revolves on the date of grant and the prohibition from alienation that was in force during the relevant period when the grant was made. In so far as the other pre-requisites such as grantee belonging to scheduled caste is concerned, there is no serious dispute and therefore, it is unnecessary to deal with the said question.

Learned Additional Government Advocate was directed to secure the records pertaining to the grant. He has secured the records with regard to the Index of Lands and submits that grant records are not available.

The Deputy Commissioner proceeds to record a finding that as per Order No. 3-2D.226/26-27 dated 02.04.1926 and SDO. No. 148/26-27 dated 05.04.1926, the land was granted in favour of Nanjappa. It is not in dispute that the original grantee who was enjoying this land by virtue of the grant made during 1926 in his favour. He executed a registered sale deed in the year 1936 in favour of Dasappa. The Assistant Commissioner has found that the grant was in the year 1932. However, the Deputy Commissioner refers to the Index of Lands to infer that grant could have been made on permanent basis during 1962.

Learned Additional Government Advocate has made available the original register containing Index of Lands and Record of Rights. At Sl. No. 180B, the grant made in favour of Nanja S/o Arasa is entered. Survey Number is shown as Sy. No. 11. The date mentioned in the claim with reference to mutation register is 03.05.1932. Nothing is mentioned there to indicate that the grant was made in the year 1962 or 1963. It is not known how the Deputy Commissioner has recorded the finding that permanent grant was made in the year 1962. In fact, in the appeal filed under Section 5-A of the Act before the Deputy Commissioner, the grantee himself has stated in ground No. e of the appeal memo that by virtue of the saguvali chit dated 05.04.1926, Nanja S/o Arasa acquired absolute right, title and interest over the land in question. Even while narrating the facts in paragraph 4 of the appeal memo, the legal representatives of the grantee - respondents 9 to 15 have stated that the land was granted in favour of Nanja - father of the 1st appellant therein and grandfather of the other appellants during the year 1926, with a non-alienation condition of 10 years as per Order No. 148/1926-27 dated 05.04.1926. This being the position, there was absolutely no basis for the Deputy Commissioner to record a finding that the grant was confirmed subsequently in the year 1962 (17.05.1962). Whatever be the assertion made by the grantee, the fact remains that in a matter like this, the authorities have to find out and the petitioner before the court has to show to the satisfaction of the court, the date of grant and the prevailing condition regarding non-alienation.

In the instant case, although the grant register showing the exact date of grant is not made available and is indeed said to be not available, the contemporaneous records such as Index of Lands and Record of Rights, original of which are made available, do not lend credence to the findings recorded by the Deputy Commissioner that though the grant was made in the year 1926, it came to be confirmed later in the year 1962. It will also not appeal to reason to accept this finding because based on the grant made in the year 1926, the grantee enjoyed rights over his property and has sold the same in the year 1936 and it is inconceivable how after a lapse of nearly 30 years, during the year 1962 the Government would again grant the land in favour of Nanja who was not in possession and had sold it. Therefore, the inescapable conclusion is that, as rightly found by the Deputy Commissioner, the grant was made in the year 1926 and as is indeed evidenced from the Index of Lands, the mutation was effected on 03.05.1932 recording the name of Nanja as grantee under Darkasth and thereafter during the year 1936 he has sold the property.

If we proceed on the basis of the above facts borne out from the records, it will emerge that the prevailing rules of non-alienation during the year 1926 would govern the grant. During 1926 and as also during the year 1932, when the mutation entry was effected, there were no rules framed by the State regulating the conditions for grant of land. What was in force was the Government Order dated 12.09.1929 imposing certain conditions regarding non-alienation. The effect of the said Government Order in the absence of any rule came to be considered by the Division Bench of this Court in the case of Mariyappa Vs. Dr. N. Thimmarayappa and Others, . In paragraphs 9 to 12 of the said judgment, the Division Bench after referring to the Mysore Land Revenue Code, 1988, particularly Sections 36 & 233, has held in paragraph 11 as under:

"11. From a reading of Section 36, it is clear that the grant of Government land was required to be regulated by the Rules that might have been framed by the Government under Section 233 of the Code. Admittedly, there was no such rule as on the date of grant regulating the grant of the Government land. When the law prescribes a thing to be done in a particular manner, it should be done only in that matter. As stated earlier, the disposal of the Government land under Section 36 of the Code is by the Deputy Commissioner subject to the orders of the Revenue Commissioner as authorized by the Rules. If that is so, in the absence of any such rule framed by the State Government regulating the grant of land, no condition could be imposed restraining alienation of land by an order issued in exercise of the executive power."

In the facts of the said case, the grant was made on 13.12.1936 and the granted land was sold under a registered sale deed dated 19.06.1947. The Division Bench after referring to the provisions aforementioned, has found that there was no violation of the condition of grant so as to come to the conclusion that the sale transaction was null and void under the provisions of Section 4(1) of the Act.

It cannot be disputed that during 1926 when the grant was made, there was no rule restricting or prohibiting alienation. The Government Order imposing condition of non-alienation has been held by the Division Bench as having no force of law to impose such condition. Therefore, it is clear that there was no violation of any condition of grant lawfully imposed when Nanja @ Nanjappa sold the property in favour of Dasappa during the year 1936. Hence, it cannot be held that there was violation of Section 4(1) of the Act.

In addition, alternatively, it has to be seen that the Assistant Commissioner has come to the conclusion that as the sale was prior to 01.01.1979, as per the decision of the Division Bench in the case of V. Muniswamy v. Deputy Commissioner, Kolar District, Kolar & Others -1993(3) KLJ 346, alienations that have taken place prior to 01.01.1979 and alienees who have perfected title by adverse possession for more than 30 years as on 01.01.1979 would perfect their title by adverse possession. Even this reasoning, assuming that it was only a temporary grant made during the year 1926 and absolute rights had not been conferred on the grantee, would enure to the benefit of the alienees who have, in this case continued to be in possession for a period of more than 30 years prior to 01.01.1979, the date on which the Act came into force.

Both these legal aspects which the Assistant Commissioner has dealt with, have not been taken into consideration by the Deputy Commissioner. He has wrongly proceeded on the basis of an inference that there was a permanent grant in the year 1962. This inference has no legal basis in any documents. In such circumstances, the findings recorded and the conclusion reached by the Deputy Commissioner have to be characterized as illegal and unsustainable.

Though it is contended by the learned Counsel for the grantees that it was only Krishnamraju who filed the appeal before the Deputy Commissioner and Mohammed Khasim did not challenge the order passed by the Assistant Commissioner after the writ petition was disposed of and therefore, the petitioner in W.P. No. 39189/2012 cannot make a grievance regarding the order passed by the Deputy Commissioner, I do not find any substance in this contention. The order passed by the Assistant Commissioner declaring that the sale was illegal and that the land stood resumed and vested in the State Government was set aside and the matter was remanded for fresh consideration. Fresh enquiry was conducted and the Assistant Commissioner held that the sale was valid as there was no violation of any condition. The grantees have not made any grievance of the past transactions. Once the entire matter is remitted for fresh consideration and the question to be considered is as regards the application of prohibition contained in Section 4(1) and the nature of grant made in favour of Nanja, such a contention advanced by the grantee cannot be countenanced.

In the result and for the foregoing, these writ petitions are allowed. Order passed by the Deputy Commissioner is set aside. The order passed by the Assistant Commissioner is confirmed.

Parties to bear their respective costs.