Javaraiah and Others vs Smt. Rangamma and Others

Hari Nath Tilhari, J.—Heard the Counsel for the parties.

This petition is directed against the order dated 18.1.1999, passed in Appeal No. PTCL/28 of 1994-95, copy of which is Annexure-E. Petitioners have primarily challenged the order of the Deputy Commissioner, in which according to them the original order merged and the main contention that has been raised on behalf of the Petitioners is, that there was no jurisdiction to take action u/s 5 of the Karnataka Scheduled Caste/Scheduled Tribe (Prohibition of Transfer of Certain Lands) Act, 1978 (Act No. 2 of 1979).

Sri Vijaya Raghavendra, holding brief for Sri S.N. Bhat, Counsel for the Petitioners raised the main contentions to the effect that jurisdiction to exercise power u/s 5 and to declare the sale in favour of Petitioners to be null and void could only arise, if it is shown prima facie or in case of dispute, is held and found that the grantee hailed from a caste or community which comes within the framework of Scheduled Caste or Scheduled Tribe.

The learned Counsel Sri Raghavendra contended that there is nothing in the order to indicate either, prima facie nor is there a finding that the grantee belonged to any caste coming within the framework of Scheduled Caste or Scheduled Tribe. It has been, therefore contended that the orders passed by the Assistant Commissioner as well as by the Appellate Commissioner are without jurisdiction and the direction to evict the Petitioners is illegal, null and void.

The contention of the Petitioners'' Counsel has hotly been contested by Sri H. Nagarajaiah. Sri Nagarajaiah contended that grantee did/does belong to Scheduled Caste and that he has mentioned in his affidavit to the application for vacation of interim order of stay. Learned Counsel contended that he ie. grantee belongs to Adi-Karnataka, but no certificate has been filed.

The facts of the case are within the short compass that survey number 144/c measuring 3 acres, described in detail in paragraph-1 of the Writ Petition, had been granted on 5.9.1961, in favour of predecessor in interest of Respondents 1 to 5, namely in the name of Sri Chikkanna (now late). It is also stated in the petition that it was granted for upset price.

An area of 20 guntas out of the said three acres of land in Sy. No. 144/c, the grantee transferred in favour of Petitioners by deed dated 8.2.1965. Petitioners'' case is that Petitioners do also belong to Scheduled Caste, namely Korava. By order dated 30th March, 1985, the Assistant Commissioner rejected the application in proceeding u/s 5, on the ground that Petitioner has perfected title by adverse possession. On appeal being filed the appeal had been dismissed by order dated 28.6.1988 and the grantee preferred the Writ Petition No. 6962 of 1992 which had been allowed by this Court by order dated 20th February, 1993 and the matter was remanded to Assistant Commissioner for decision, according to law. After remand, Assistant Commissioner by order dated 18.1.1995, again dismissed the application u/s 5 of Karnataka Act No. 2 of 1979. The grantee preferred appeal before the Deputy Commissioner and by order dated 18.1.1999. The Deputy Commissioner allowed the grantee''s appeal and issued direction to the Assistant Commissioner declaring the sale dated 8.2.1965 to be null and void and directed resumption of possession and thereafter restoration of land thereof in favour of the Appellant, that is the present Respondent.

Feeling aggrieved from that order the purchaser has come up before this Court by this petition.

The only point urged with vehemence by Vijaya Raghavendra is that there is nothing in the orders either of Assistant Commissioner or of the Deputy Commissioner showing that grantee belonged to Scheduled Caste, that is said to belonged to caste coming within the framework of Scheduled Caste or Scheduled Tribe.

I have perused the orders, I asked the learned Counsel for the Respondents to show, if there is any indication that grantee belongs to either Scheduled Caste or Scheduled Tribe either in the order of the Assistant Commissioner or in the order of the Deputy Commissioner. I also called upon the learned Government Counsel to help me in this matter, it has been fairly contended by the Government Counsel and the Respondents'' Counsel that in the order there is no indication that the grantee belongs to a caste coming within the framework of Scheduled Tribe or Scheduled Caste. No doubt there is no dispute that so far as the grant is concerned it was for upset price and, in cases where the grant is for upset price or reduced upset price the law is and has been under rules prior to 1960 amendment, of the Rules that prohibition is to operate for 10 years under Rules, as amended in 1960, if grant is free of cost or for a price less than ''Full Market Value'' the bar against alienation is to operate for 15 years. That is no transfer of the granted land can be made during the period prohibition operates. In the present case, no doubt if grantee is shown and proved to belong to Scheduled Caste/Scheduled Tribe, the transaction would definitely be null and void, because the transfer has been made within the period of 4 years from the date of grant, i.e. within ten years period from date of grant, and further the upset price may be near to market value, but it cannot be treated to be ''Full Market Value'' and if rules of 1960-61 are to apply bar would have operated for 15 years, as it has not been the Petitioner''s case that grant of land made on 5.9.1961 in favour of grantee was for full market value.

Further in view of Section 5(3) of Act No. 2 of 1979 the rebuttable presumption is directed to be raised that if any person, other than the grantee or his legal heir, is found to be in possession of granted land, unless otherwise is shown or established, it shall be presumed and deemed that such person has acquired the land by the transfer deemed to be null and void u/s 4(1) of the Act. Burden to prove, otherwise and rebut the presumption is on the person in person in possession by taking and establishing the case, as otherwise than the presumption u/s 4(1) read with Section 5(3) of the Act, if and after land is shown or found to be the granted land'' within Act. That, as such if grantee is shown to belong to either Scheduled Caste or Scheduled Tribe and a finding arrived, then transfer or sale deed dated 8.2.1965 can be said and held to be null and void, so finding recorded by authorities the sale was void, is affirmed subject to the condition of finding being recorded by authorities under the Act if grantee belonged to Scheduled Caste or Scheduled Tribe.

The other contention that transferee belonged to Scheduled Caste or Scheduled Tribe and, so it is not hit by Section 4(1) of the Act has got no substance, as no exception or exemption has been provided under the provision of the Act vide Sections 4 or 5 of the Act. The question, if is hit by provisions of Section 4(1), is dependent on finding, if Section 4(1) applies and it will apply only, if the land comes within the framework of granted land'', namely the land granted by the Government to a person belonging to a Caste which may come either under the Scheduled Caste or Scheduled Tribe. If land comes and finding is arrived in affirmative that ''land'' in question comes within framework of granted land, grantee is found or held to belong to Scheduled Caste or Scheduled Tribe caste, then Section 4(1) will apply to the case.

As mentioned earlier there is no dispute that the authorities, that is, neither Assistant Commissioner nor Deputy Commissioner have applied their minds to this aspect of the matter and have not indicated anything in the order. In this view of the matter, it appears just and proper to issue following directions to the Deputy Commissioner that; he may record a finding after recording evidence of the parties which the parties may like to produce, consider the question and record the finding on the question; Whether the grantee did belong or do belong to a caste coming within the framework of either of Scheduled Caste or Scheduled Tribe. In the order he must indicate to which caste the grantee did and do belong by recording a finding on the question; Whether does grantee belong to Scheduled Caste or Scheduled Tribe.

Therefore parties may be allowed to adduce necessary evidence, and if he arrives at a conclusion that grantee did not or do not belong to Scheduled Caste or Scheduled Tribe, then orders passed by the Deputy Commissioner shall not be implemented nor be given effect to nor Petitioner shall be evicted from the land in question, that is land subject-matter of sale deed dated 8.2.1965, but if finally, after recording evidence, the Deputy Commissioner comes to a conclusion that the grantee, belongs to a caste coming within the framework of Scheduled Caste or Scheduled Tribe and, then orders passed by the Deputy Commissioner contained in Annexure-E may be implemented and given effect to, otherwise the order of Deputy Commissioner shall also be taken to be null and void. The Deputy Commissioner is directed to act accordingly. The parties are directed to maintain status quo regarding possession till the finding is recorded by the Deputy Commissioner one way or the other. The Writ Petition is, thus finally allowed. Let the direction in the nature of mandamus be issued to the Deputy Commissioner to decide the appeal afresh, particularly on the point: Whether grantee belong to Scheduled Caste, it is clarified that the finding be made about the nature of grant and the date of transfer shall not be touched, until it is found that grantee did not belong to Scheduled Caste. Taking of further action u/s 5, it is clarified, will depend upon the finding on question; Whether did grantee belong to Scheduled Caste, as finding regarding validity of the sale deed, whether it is affected by Section 4(1) depends on answer to the question, if the grantee belongs to Scheduled Caste. That on finding, if is arrived in affirmative, the finding recorded by Deputy Commissioner on question of invalidity of sale deed dated 8.2.1965, on the basis of Section 4(1) of the Act will be deemed to have been affirmed.