Manchegowda Bin Nanjegowda vs State of Karnataka and Others

Heard the learned Counsel for the parties, namely Sri L.S. Chikkanna Goudar in Writ Petition Nos. 20296 of 1994, 22059 of 1994, 26401 of 1994 and in Writ Petition No. 20281 of 1994, as well as Sri Shivappa, who appears for the petitioners in Writ Petition Nos. 32640 to 32642 of 1993 and in Writ Petition No. 132 of 1994. Sri Shivappa appears for respondents in Writ Petition Nos. 20296 of 1994, 22059 of 1994, 22401 of 1994 and 20281 of 1994, while Sri Chikkanna Goudar appears for respondents in Writ Petition Nos. 32640 to 32642 of 1993 and Sri N. Shankaranarayana Bhat for respondents in Writ Petition No. 132 of 1994. I have heard Sri Bhat as well. That one common point arises in all these petitions as such these petitions are being disposed of by one common judgment.

The grantee Smt. Nanjamma, respondent 7 in Writ Petition Nos. 32640 to 32642 of 1993, is the petitioner in Writ Petition No. 20296 of 1994. She is alleged to be belonging to Scheduled Caste as she hails from Adi Karnataka caste. She was granted one acre of land in Sy. No. 95/2 in village Heggur of Bannur Hobli vide order dated 3-11-1959 passed in case No. A.3D.R. 262/59-60. The grant was a temporary one for five years. Later on vide order dated 17-10-1962 passed by the Deputy Commissioner in Special D.D.C. 113/61-62 she was granted a permanent grant to make use of the land under rules read with Section 58 of the Mysore Land Revenue Act, 1888. In the copy of the Saguvali Chit issued to Smt. Nanjamma one of the conditions had been made or mentioned prohibiting the grantee from making alienation of the granted land for a period of 15 years from the date of grant. In the year 1969, may be 3-5-1969, the grantee by registered sale deed transferred the granted land in favour of Manchegowda, the petitioner in Writ Petition Nos. 32640 to 32642 of 1993 who is respondent 4 in Writ Petition 20296 of 1994 filed by Nanjamma. The alienation was made in 1969. Proceedings under Section 5 of the Act 2 of 1979 were taken for resumption of land and the Assistant Commissioner after necessary enquiry by an order dated 14-6-1994 passed the order declaring the alienation of the granted land in favour of the respondent in Writ Petition Nos. 20296 of 1994, 22059 of 1994, 22401 of 1994 and 20281 of 1994 to be illegal, null and void in view of the provisions of Section 4, on account of transfer having been made in violation of the non-alienation clause imposing a bar or prohibition on the right of the grantee to make transfer of the land and directing him not to transfer land for 15 years and ordered resumption of the land as well as restoration thereof in favour of Nanjamma. Feeling aggrieved from the order of the Assistant Commissioner, Manchegowda, the transferee filed appeals under Section 5-A of Act No. 2 of 1979. The Deputy Commissioner during the pendency of the appeal had granted a stay order on 18-5-1993 periodically and it was extended as per Annexures A, A-1, B, B-1, C, C-1, E and F to Writ Petition Nos. 32640 to 32642 of 1993. The stay was vacated vide order 3-9-1993 and mahazar Annexure-H was drawn for effecting a transfer of possession. The alienee, Manchegowda had filed Writ Petition Nos. 32640 to 32642 of 1993 challenging the order whereby order of interim stay granted in the appeals had been vacated. During the pendency of these writ petitions, the Appellate Authority, i.e., the Deputy Commissioner decided the appeals filed by the alienee Manchegowda vide order dated 14-6-1994. The Deputy Commissioner, who has been arrayed as respondent 3 in the writ petitions filed by the grantees and has been arrayed as respondent 2 in the writ petition filed by the alienee, allowed the appeals filed by the transferee Manchegowda, the petitioner in the three petitions filed by him and arrayed as respondent 4 in the writ petition filed by the grantees. The Deputy Commissioner opined that the grant in the present case would be one covered by Rule 43-J and therefore non-alienation clause contained in 43-G of the Rule will not be applicable and on that basis he held that there was no bar against alienation so far as the grantee was concerned and so the sale deeds made in favour of the alienee were valid and set aside the order of Assistant Commissioner. Feeling aggrieved by the final order passed on 14-6-1994, the grantees filed Writ Petition Nos. 20296 of 1994, 22059 of 1994, 22401 of 1994 and 20281 of 1994. It may be clarified that Writ Petition Nos. 20281 of 1994 and 132 of 1994 are private parties, different from those involved in Writ Petition Nos. 32640 to 32642 of 1993.

As regards Writ Petition Nos. 22059 of 1994 and 22401 of 1994 the grantee is one Narasamma. She is alleged to have been in possession of the land under temporary grant and thereafter which had been granted permanently in favour of the grantee. The grantee in Writ Petition No. 22059 of 1994 and Writ Petition No. 22401 of 1994, it has been stated, belonged to Adidravida caste and land was granted to her husband in Sy. No. 95/3 vide order dated 3-11-1959 temporarily for five years and later on, on 19-10-1962, according to petitioner''s case it was given permanently to the petitioner. The Saguvali Chit in favour of Narasamma who is the petitioner in Writ Petition Nos. 22059 of 1994 and 22401 of 1994 had been issued on 12-6-1964. In the Saguvali Chit according to petitioner''s case there has been a condition put to the effect that the grantee shall not alienate the land for a period of 15 years. But the grantee in these two petitions had made transfers in favour of respondent Manchegowda vide sale deed dated 10-7-1964 in Writ Petition No. 22059 of 1994 and in favour of Madegowda on 24-6-1964 and Madegowda in turn sold it to Manchegowda vide sale deed dated 1-3-1972 in Writ Petition No. 22401 of 1994. In Section 5 proceedings, the Assistant Commissioner passed the order allowing the application under Section 5 of Act 2 of 1979 and declared transfers to be null and void and ordered resumption of the land and restoration in favour of the grantee. In both the petitions, two appeals were filed by the transferees and the Deputy Commissioner allowed those appeals by a common order, taking the view as mentioned above that grantee was granted under Rule 43-J and so Rule 43-G will not apply nor was there a bar against alienation and upset the order of the Assistant Commissioner and from those orders the grantee filed these two writ petitions.

As regards Writ Petition No. 132 of 1994, the petitioner''s father purchased the land from the grantee on 6-1-1968. The land had been granted in favour of Peddayellaiah, senior uncle of the first respondent. According to petitioner''s case the father of the petitioner had purchased from Pinchalaiah vide sale deed dated 6-1-1968 and thereafter proceedings were taken under Section 5 of Act 2 of 1979. It may be mentioned that Pinchalaiah is the person who had purchased the land from the original grantee Peddayellaiah. The original grantee Peddayellaiah transferred the land in favour of Pinchalaiah on 10-9-1967 and Pinchalaiah sold this land on 6-1-1968 to the petitioner''s father. Peddalaiah, the grantee is stated to be the senior uncle of respondent 1 meaning the elder brother of the father of respondent 1 in Writ Petition No. 132 of 1994 and Peddalaiah had died leaving no sons.

Respondent 1 who claims to be the nephew (own brother''s son) of the grantee moved the application under Section 5 of the Act 2 of 1979 for restoration of the land. The Assistant Commissioner held that the land was originally granted on 30-9-1959 temporarily which was confirmed on 18-1-1967 by issuing Saguvali chit mentioning a condition prohibiting the transfer for 10 years and he held that transfer had been made by the grantee during the period when non-alienation clause was operating and as such the alienation made in 1968 was void and allowed the application. The petitioner feeling aggrieved from the order of the Assistant Commissioner filed the appeal before the Deputy Commissioner, the Deputy Commissioner dismissed the purchaser''s appeal and maintained the order passed by the Assistant Commissioner vide his order dated 10-12-1993, Annxure-B to that writ petition and as such the alienee filed this writ petition in Writ Petition No. 132 of 1994.

Writ Petition No. 20281 of 1994 has been filed by Madaiah @ Pillaiah. The petitioner is again in this case is a grantee. The land in the present case was granted by the grant order dated 10-10-1961. Saguvali Chit had been issued on 10-10-1961 vide Annexure-A. The grant order contained as per Saguvali chit, restriction to the effect that the grantee shall not transfer the granted land for a period of 10 years. The petitioner''s case is that the petitioner grantee is belonging to Adikarnataka Community. The petitioner no doubt transferred the land in favour of Kalegowda, son of Manchegowdana Muggegowda vide sale deed dated 15-3-1965. Proceedings under Section 5 of the Act in this case also did take place on an application being moved on 24-7-1989 by the petitioner. Present respondents 4 and 5 are the legal representatives of Kalegowda, sale in whose favour had been made vide sale deed dated 15-3-1965. The application under Section 5 as mentioned earlier had been moved by the petitioner in the writ petition for resumption and restoration of the land to the grantee. The Assistant Commissioner vide his order dated 25-6-1990 held that the alienations were in violation of the non-alienation clause or the conditions which prohibited the alienation of land for a period of 10 years and so the alienation was bad, null and void and ordered restoration of the land. Aggrieved from that order dated 25-6-1990 passed by the Assistant Commissioner, the said alienee, namely Kalegowda filed the appeal under Section 5-A of the Act. The said appeal was numbered as case No. 20 of 1990-91. The alienee Kalegowda died during the pendency of the appeal and his heirs were brought on record. The Deputy Commissioner allowed the appeal of the alienee i.e., alienee''s legal representatives and set aside the order made by the Assistant Commissioner, taking the view that the Assistant Commissioner took a wrong view of law. The appeal was allowed by an order dated 14-6-1994 under Annexure-E. The learned Deputy Commissioner while deciding the appeals opined that the grant was covered by Rule 43-J and so Rule 43-G did not apply and allowed the appeal and set aside the order of the Assistant commissioner. The Deputy Commissioner has taken the view that land had earlier been temporarily granted in favour of the grantee in the year 1959 and thereafter it was confirmed in 1961 and therefore, he held that the case was covered by Rule 43-J. These petitions under Article 226 have thus come before this Court and as I have mentioned, I have heard the learned Counsel for the petitioners and respondent in these petitions.

So far as Writ Petition Nos. 32640 to 32642 of 1993, these writ petitions have become infructuous technically, because of the final order having been passed in the appeal in which the stay order had been vacated. As such these writ petition in Nos. 32640 to 32642 of 1993 are dismissed as having become infructuous.

The Full Bench of this Court in Chikka Kullegowda and Others v State of Karnataka and Others, ILR 1997 Kar. 1753, has held that so far as the case where grant is made and is covered by Rule 43-J, the provisions of Rule 43-G will not apply. The Full Bench has affirmed the view expressed in Smt. Siddamma v Chikkegowda and Others, 1991(1) Kar. L.J. 210. The Counsel for the petitioner-grantees in the writ petitions filed by the grantees as mentioned above, has contended before me that in the grants a condition against non-alienation has been made as per Saguvali Chit and once the grantee has taken possession of the land subject to those conditions incorporated in the Saguvali Chit including non-alienation clause contained therein, the grant should be taken to be subject to those conditions in the grant. The learned Counsel contended that the Full Bench has not laid down that no condition can be imposed in the grant issued or granted within the framework of Rule 43-J. Learned Counsel pointed out this question was attempted to be agitated but the Full Bench left open for decision. The learned Counsel invited my attention to paragraph 14 of the Full Bench decision. Learned Counsel contended that in this view of the matter the question whether while making the grant, the Deputy Commissioner could impose such a condition irrespective of the fact that the grant is said to be covered by Rule 43-J, in view of Section 58 read with Section 60 of the Mysore Land Revenue Act, 1888. On behalf of the respondents in writ petitions, other than Writ Petition No. 132 of 1994, and for petitioner in Writ Petition No. 132 of 1994, Sri Shivappa contended that Rule 43-J will not apply to the grant made under Rule 43-G and there is no power to the Commissioner to impose any condition or restriction for grant and the Commissioner could not incorporate those conditions in the grant. He further contended that the provisions of the Act, i.e., Section 58 and 60 will not apply to the facts of the case. At a later stage, the respondent''s Counsel contended Section 58 may apply but subject to rules as framed under Section 233 of the Mysore Land Revenue Act, but Section 60 may not apply and rules may be taken to be the order of the Government subject to which the power is vested with the Deputy Commissioner. I have applied my mind to the contentions raised by the learned Counsel for the petitioner and respondent. As these petitions other than Writ Petition Nos. 32640 to 32642 of 1993, involve same question of law, these petitions are being disposed of by one common judgment. The only question is the competency of the Deputy Commissioner to impose the conditions while granting the land even if the grant is under Rule 43-J.

Paragraph 14 of the above mentioned Full Bench decision reads as under:

"Considerable arguments were addressed on the question whether the authority granting land under Rule 43-J can impose any conditions at the time of making the grant; and on the effect of a condition imposed in the Saguvali Chit by the Tahsildar that the grantee shall not alienate the land for a period of fifteen years when such condition was not imposed by the order of the authority making the grant. We express no opinion on these questions as they have not been referred for our opinion".

This paragraph per se reveals that the Hon''ble Judges constituting the Full Bench refused to express any opinion on the point which had been raised in all these petitions and which arises in all these petitions. The only question now for consideration is whether even if the grant is covered by Rule 43-J, it was open to the Deputy Commissioner to incorporate conditions including the one prohibiting alienation of the granted land for certain period. The learned Counsel at this stage pointed out that this point is pending before the Bench in Writ Appeal Nos. 304 and 362 of 1992 and it is referred to the Full Bench and the matter is still pending. This is not a ground to adjourn the case.

The principal act under which the grant has been made of the Government land is Mysore Revenue Act, 1888. It will be profitable to make a reference to Sections 58, 59 and 60 of the Act No. 4 of 1888. These sections read as under:

"58. Any person desirous of taking up unoccupied land which has not been alienated must, previously to entering upon occupation, obtain the permission in writing of the Amildar or Deputy Amildar, or as may be provided under rules made in this behalf under Section 233.

Any person who shall unauthorisedly occupy any land set apart for any special purpose, or any unoccupied land which has not been alienated, shall, if the land which he unauthorisedly occupies forms part of an assessed survey number, pay the assessment of the entire number for the whole period of his occupation and;

if the land so occupied by him has not been assessed, such amount of assessment as would be leviable for the said period in the same extent of similar land appropriated to the same purpose;

and shall also be liable, at the discretion of the Deputy Commissioner, to a fine not exceeding five rupees, or a sum equal to ten times the amount of assessment payable by him for one year, if such sum be in excess of five rupees, if he has taken up the land for the purposes of cultivation, and not exceeding such limits as may be fixed in rules or orders made in this behalf under Section 233 if he has appropriated it to any non-agricultural purpose.

The Deputy Commissioner''s decision as to the amount of assessment payable for the land unauthorisedly occupied shall be final, and in determining the amount of assessment payable for the land unauthorisedly occupied, occupation for an incomplete portion of a year shall be counted as for a whole year.

The person unauthorisedly occupying any such land may be summarily evicted by the Deputy Commissioner, and any crops he may have raised on the land shall be liable for forfeiture, and any building or other construction he may have erected thereon shall also, if not removed by him after such written notice as the Deputy Commissioner may deem reasonable, be liable to forfeiture.

Forfeiture under this Section shall be adjudged by the Deputy Commissioner, and any property so forfeited shall be disposed of as the Deputy Commissioner may direct.

(On the application of the holder of an alienated village or on complaint by any aggrieved person, the Deputy Commissioner may exercise in respect of any lands situated in the alienated village the powers vested in him under this Section.)

It shall be competent to the Deputy Commissioner subject to such orders as may from time to time be made by the Government, to require the payment of a certain price for the occupancy, or to sell that right by auction and to annex such conditions to the occupancy as may seem fit, before permission to occupy is granted under Section 58.

The price of an occupancy shall, unless otherwise directed by the terms of the sale, include the price of the Government right to all trees not reserved under the provisions of Section 41, and shall be recoverable as an arrear of land revenue".

A reading of these sections reveals that so far as Government owned lands are concerned, a person may occupy that land with the permission in writing granted under Section 58, by Amildar or Deputy Amildar under the Rules made in this behalf under Rule 233. Section 60 provides that it is within the competency of the Deputy Commissioner, no doubt subject to the orders which may be passed by the Government from time to time to annex conditions to the occupancy as may appear to be fit before the permission to occupy is granted under Section 58. Section 233 of the Act confers powers on the Government to frame rules and as per Section 233(h), the rules may be framed for regulating the grant of permission to occupy unoccupied land under Section 58 of the Act. So the permission to occupy the lands is granted by the Government under Section 58 and it is within the competency of the Deputy Commissioner to impose the conditions to occupancy as deem fit. Section 70 of the Act of 1888 provides that the right of occupancy shall be deemed an heritable and transferable property subject to the provisions contained in Section 54 or otherwise prescribed by law, and shall immediately pass to the person whose agreement to become an occupant shall have been accepted by the Deputy Commissioner. It means if under law certain conditions or restrictions have been imposed or under the authority of law certain conditions have been imposed, the right to inherit or right to transfer will be subject to those conditions. Section 60 of the Code by itself is statutory provision which authorises the Deputy Commissioner to annex conditions to the grant. No order has been brought to my notice which may run to the contrary that Deputy Commissioner will not impose any conditions to any grant made by him or any specific type of grant made by him. In other words no order has been brought to my notice which might be to deprive or divest the Deputy Commissioner of the powers conferred under Section 60. The learned Counsel for the respondent only contended interpretation given to Section 43-J and 43-G may be taken as if the Deputy Commissioner is not entitled to put such restrictions as he deems fit on the right of the grantee to transfer the land and made reference to the Division Bench decision of this Court in the case of Siddamma, supra. I have gone through that decision. That decision is only on the question of interpretation of Rule 43-J and Rule 43-G and the Division Bench has laid it down, by its own force or operation Rule 43-G will not apply for cases where grant is covered by Rule 43-J. Nowhere it has been laid that the Deputy Commissioner cannot impose any condition by virtue of the powers under Section 60 of the Act. In fact, a perusal of the order makes it clear that neither that question was adjudicated before the Division Bench nor any reference was made by the Division Bench to the provisions of Sections 58 and 60 of the Mysore Land Revenue Act, 1888 and the Full Bench as mentioned earlier has also not expressed any opinion on the point and it had kept it open for decision by the Court at a later stage. So this question appears not to have been decided by now by this Court.

Section 60 is very clear that it is within the competency of the Deputy Commissioner of the District to annex such conditions to the occupancy as may seem fit to him, before permission is granted to occupy under Section 58. In this view, in my opinion, the Deputy Commissioner acted within his authority while imposing a condition that alienation shall not be made for a particular period irrespective of the fact that Rule 43-G may not apply, but the non-alienation clause contained in the grant subject to which the grant is made comes within purview of provisions of Section 60. I am not saying that provisions of Rule 43-G will apply. What I intend to clarify is if the grant contains, which is granted in the form of Saguvali Chit, contains a condition against alienation and debars the grantee from alienating for certain period and then that condition will be binding and that the grantee will be taking the land subject to that condition on one hand and the Deputy Commissioner is competent to introduce such condition in the grant, unless and until the State Government is proved and shown to have otherwise provided. No such thing having been pointed out, in my view the lands that had been granted to in favour of the grantee were subject to the conditions that the granted land will not be alienated for a specified period mentioned therein. The Commissioner has set aside the order simply on the ground that Rule 43-G will not apply to the Grants made under Rule 43-J. He might be right. But the Commissioner committed an error in allowing the appeals filed by the transferees in all the writ petitions except in Writ Petition No. 132 of 1994, while the Commissioner acted rightly in Writ Petition No. 132 of 1994 when he held that the alienation was in breach of the non-alienation clause. Thus considered in my opinion Writ Petition Nos. 20296 of 1994, 22059 of 1994, 22401 of 1994 and 20281 of 1994 deserve to be allowed, while Writ Petition No. 132 of 1994 deserves to be dismissed. As mentioned earlier Writ Petition Nos. 32640 to 32642 of 1993 also deserve to be dismissed as these writ petitions have become infructuous as mentioned earlier. As the writ petitions other than these writ petitions (Writ Petition No. 132 of 1994 and Writ Petition Nos. 32640 to 32642 of 1993) are allowed, the order of the Assistant Commissioner passed in these cases is held to be valid and is restored. The opposite parties are directed to give effect to the orders passed by the Assistant Commissioner in all these writ petitions except Writ Petition No. 132 of 1994 and Writ Petition Nos. 32640 to 32642 of 1993 and implement the order passed by the Assistant Commissioner passed under Section 5 and the stay order which had been granted to the petitioner in Writ Petition No. 132 of 1994 shall be taken to have expired with the dismissal of Writ Petition No. 132 of 1994. The Deputy Commissioner will give effect to the order made under Section 5 of the Act. All these writ petitions are finally disposed of with costs in favour of the petitioners in writ petitions which have been allowed and in Writ Petition 132 of 1994 is dismissed with costs in favour of respondent. Costs are assessed in cases of writ petitions which have been allowed at the rate of Rs. 1,500/- per writ petition and in case the writ petition which has been dismissed, the respondent will be entitled to costs of Rs. 1,500/- as well payable to the first respondent.