Mudalappa (Deceased) by L.Rs vs State of Karnataka and Others

By this petition the transferee has challenged the order dated 26-4-1991, passed by the Assistant Commissioner in Case No. LND. UAG(S) 10/88-89, allowing application u/s 5 of Act 2 of 1979, that is Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1979 as well as order dated 21-11-1996, passed in RA. SC. ST (DTCH) 8/91-92 by Deputy Commissioner, Tumkur.

It is an admitted fact that the land was granted to one Ramappa-husband of respondent 4 who belonged to Adi-Karnataka Caste, vide, grant dated 25-12-1961. The total area of the land granted in favour of Ramappa was 4 acres. Ramappa sold the land vide, sale deed dated 11-11-1971, in favour of petitioner-Mudalappa. The petitioner claims to be in possession of the land on the basis of the sale deed. An application u/s 5 of the Act having been moved by the second respondent, the Assistant Commissioner after having made enquiries held that the sale in question was made within a period of 10 years from the date of the grant. It is held that under the amended rules that is rules amended by 1960 Rules, the land granted free of cost could not be alienated for 15 years, or land granted to a price less than full market value could not be transferred for 15 years. In the present case the land having been transferred within 10 years from the date of the grant, by sale deed dated 11-11-1971, has been held to be null and void u/s 4 of the Act and the Assistant Commissioner directed the restoration of the land to the original grantee or his legal heirs. It no doubt held that respondents are entitled to copy of Mahazar made regarding improvements, if any, at the time of handing over of possession.

The license having felt aggrieved from the order of the Assistant Commissioner dated 26-4-1991, preferred an appeal u/s 5-A of the Act. The Deputy Commissioner dismissed the appeal and affirmed the order of the Assistant Commissioner. It has been mentioned in the order that it has not been disputed that the grant had open made subject to non-alienation clause prohibiting transfer of the land for 15 years. When this fact has not been disputed as mentioned in the order of the Deputy Commissioner as well, it had to be taken that the grant was for something less than the full market value, even if it was not a free grant and it may be taken not to be a free grant. The Appellate Authority opined that the grant was subject to the non-alienation condition operative for 15 years from the date of taking possession and as such affirmed the order of the Assistant Commissioner.

Having felt aggrieved from the order of the Assistant Commissioner and the Deputy Commissioner, the petitioner has come before this Court by this petition under Article 226 of the Constitution.

I have heard learned Counsel for the petitioner-Sri H.T. Narendra Prasad holding brief for the petitioner''s Counsel Sri L.G. Havanur and Smt. Shantha Kumari, learned Government Pleader for the respondents.

Learned Counsel for the petitioner contended that the two authorities have not recorded any finding regarding the nature of the grant and until the nature of the grant is decided, whether it was a free grant or grant for less than the market value or it was for full market value, the rider against alienation could not be applied and petitioners possession could not be deemed to be unlawful or transfer could not be deemed to be null and void.

These contentions of the petitioners'' Counsel have hotly been contested by the Government Pleader, Smt. Shantha Kumari.

I have applied my mind to the contentions raised by learned Counsel for the parties. u/s 5, sub-section (3) of Act 2 of 1979, Scheduled Castes/Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, rebuttable presumption has been provided. It provides and reads as under:

"5. Resumption and restitution of granted lands.-

(1) where, on application by any interested person or on information given in writing by any person or suo motu, and after such enquiry as he deems necessary, the Assistant Commissioner is satisfied that the transfer of any granted land is null and void under sub-section (1) of Section 4, he may.-

(a) by order take possession of such land after evicting all persons in possession thereof in such manner as may be prescribed:

Provided that no such order shall be made except after giving the person affected a reasonable opportunity of being heard;

(b) restore such land to the original grantee or his legal heir. Where it is not reasonably practicable to restore the land to such grantee or legal heir, such land shall be deemed to have vested in the Government free from all encumbrances. The Government may grant such land to a person belonging to any of the Scheduled Castes or Scheduled Tribes in accordance with the rules relating to grant of land;

(1-A) after an enquiry referred to in sub-section (1) the Assistant Commissioner may if he is satisfied that transfer of any granted land is not null and void pass an order accordingly.

(2) any order passed under sub-sections (1) and (1-A) shall be final and shall not be questioned in any Court of law and no injunction shall be granted by any Court in respect of any proceeding taken or about to be taken by the Assistant Commissioner in pursuance of any power conferred by or under this Act.

(3) for the purposes of this section, where any granted land is in the possession of a person, other than the original grantee or his legal heir, it shall be presumed, until the contrary is proved, that such person has acquired the land by a transfer which is null and void under the provisions of sub-section (1) of Section 4".

Under the provisions of this Section when any granted land is in possession of a person other than the original grantee, or his legal heir, then it shall be presumed, until the contrary is proved, that such a person has acquired the land by transfer which is null and void under the provisions of sub-section (1) of Section 4. A reading of this Section 5(3) leads me to opine that it has been made mandatory for the authorities to presume in cases where any person other than the grantee or his heirs are in possession of the granted land, then the authorities will have to presume that such a person acquired the land by virtue of a transfer which is null and void u/s 4(1) of the Act. When the law imposes a duty as principle of law of evidence as well, provides a statutory presumption to be raised, the burden shifts on the other side to prove to the contrary and this is very much made clear by a the language of sub-section (3) of Section 5, which says "until the contrary is proved". It means until the contrary is proved or if contrary is not proved, the presumption will operate that the person who is in possession of the land, if he is a person other than the original grantee or his heir, he will be deemed to be in possession of the land, and will be deemed to have acquired the land, by virtue of transfer which is in law or u/s 4(1) of the Act be null and void. Therefore, in such a case where admittedly beyond dispute that the grantee did belong to Adi Karnataka Caste, which is a Scheduled Caste, rest of the burden is on the alienee who claims to be in possession of the land to allege and show and establish that the transfer was not in breach of bar or that bar did not apply and that the sale cannot be taken to be or deemed to be void u/s 4(1) of the Act. If the alienee does not plead any such thing and does not furnish any proof or does not prove to the contrary, the law is that the authorities have to start with the presumption that the person in possession if other than the original grantee or his heir, has acquired the land under transfer which is void u/s 4(1) of the Act and pass the order.

Learned Counsel for the petitioner invited my attention to the decision of the Division Bench of this Court in the case of Pedda Reddy Vs. State of Karnataka, , for the proposition that the Assistant Commissioner cannot declare sale of the granted land under the provisions of the Rules (Mysore Land Revenue Rules), to be null and void and unless he records the following finding, that is findings on question -- (i) that the grantee belong to the Scheduled Caste or Scheduled Tribe; (ii) that the grant was either on upset price or a free grant or for a price less than upset price; (iii) that the alienation had taken place within the period or prohibition prescribed under the rules.

A finding has to be recorded if contrary to the statutory presumption is alleged and proved, in view of Section 5(3) of the Act. The very basis for authority proceeding is the presumption that a person other than the grantee or heir, if he is in possession, that he has acquired the land under a void transfer or under a transfer which is hit by Section 4(1) of the Act. Once this presumption is there the contrary is to be proved by the alienee or the person in possession. It means the person in possession has to allege that his possession is not under a deed which is illegal, null and void. He may plead that the Section 4 of the Act did not apply and place these facts, which may show that either Act or Section does not apply. If the alienee does not allege that the grant was not a free grant to say grant was for full market value, if he does not allege that the grantee does not belong to Scheduled Caste Community or the alienee does not deny the allegations made by the grantee that he belongs to Scheduled Caste Community or the alienee does not allege that the transfer in his favour had been made after the expiry of the period of bar against alienation or alienee does not plead that he has obtained necessary permission of the Government, which is required u/s 4(2) in the matters of transfers, after coming into force of the Act, then the presumption u/s 5(3) of the Act is to operate and the authorities are required to take decision and pass order, keeping in view this presumption that possession of a person other than grantee or his legal heir is on the basis of acquisition of the land by transfer which is null and void u/s 4(1) of the Act. It may be a different case where such things are pleaded and that authorities may be required to record the finding on the points, otherwise there may not be any necessity. They will start with the basic presumption. It appears that attention of the Hon''ble Judges in Pedda Reddy''s case, supra, was never invited to the provisions of Section 5, subsection (3) of the Act. These observations will be applicable in cases where there is a dispute and dispute has been raised by the alienee or person in possession other than the grantee or his heir. Where no such plea in defence is raised, the order cannot be said to be illegal, null and void, in view of Section 5(3) of the Act.

Thus considered in my opinion this contention of the petitioners'' Counsel is without substance. As observed by the two authorities, the caste of the grantee was Adi Karnataka. Adi Karnataka is a Scheduled Caste. As regards the question whether it was a free grant or grant for upset price or for less than the market value and whether it was against the conditions, the finding has been recorded that the condition did apply of 15 years bar against alienation and transaction was void u/s 4(1) of the Act. The finding which has been arrived at appears to be in consonance with the presumption u/s 5(3) of the Act.

In this view of the matter, in my opinion the present petition has got no force. It is without merits and is hereby dismissed. Costs of the writ petition are made easy.

Learned Government Pleader, Smt. Shantha Kumari is permitted to file her memo of appearance.