Narasimhamurthy vs State of Karnataka and Others

Land bearing Sy. No. 133 measuring 4 acres of Dindavara village, Hiriyur Taluk, Chitradurga Dist., was a Government land. On an application made by respondent No. 3, a member of Scheduled Tribe, the Tahsildar, Hiriyur Taluk by his order No. LND SR 729/72-73 granted the said land to respondent No. 3 free of cost with a condition that she should not alienate the same for a period of 15 years from that date and incorporated that condition also in the grant certificate issued to her, But, in contravention of the said clause imposed in the grant certificate, respondent No. 3 alienated the said land to the petitioner under a registered sale deed dated 11-8-1975 (Annexure-A) to enable her to purchase another land of the same village, that was more convenient for cultivation.

Under the provisions of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 (Kar. Act 2 of 1979) (hereinafter referred to as ''the Act'') that came into force on 1-1-1979, respondent No. 3 made an application before the Asst. Commissioner, Chitradurga Sub-Divn., Chitradurga (hereinafter referred to as ''the AC'') for voiding the alienation made by her to the petitioner and for restoration of the possession of the land granted to her but sold and delivered to the petitioner under the sale deed dt. 11-8-1975. On that application, the AC issued a show cause notice in the form prescribed in the Rales made under the Act to the petitioner, in response to which he appeared before him and urged that he had sold his land to respondent No. 3 and bought the land granted to her and that in reality and substance, it was an exchange and cannot, therefore, be annulled under the Act.

At the inquiry before the AC, the petitioner stuck to his plea. On an examination of the statements of the petitioner and respondent No. 3, the AC by his order dt. 9-6-1980 (Annexure-C) taking the view that the transaction was one of exchange ratified the same purporting to act under S. 25 of the Karnataka Land Revenue Act of 1964 (hereinafter referred to as ''the LR Act''). In other words, the AC dropped the proceedings under the Act.

But, still on the basis of the said order of the AC, the Tahsildar, Hiriyur Taluk (hereinafter referred to as ''the Tahsildar'') issued an eviction order bearing No. SCPTL 41/79-80 dt. 28-3-1981 (Annexure-D) against the petitioner calling upon him to deliver the land sold to him. Aggrieved by the same, the petitioner moved this Court under Art. 226 of the Constitution, challenging the constitutional validity of the Act, the order of the AC and the eviction order of the Tahsildar.

The petitioner has challenged the Act as violative of Arts. 14, 19 and 31 of the Constitution.

As the hybrid order of the AC did not really affect the petitioner, his learned counsel did not propose to challenge the same and confined his challenge to the Act and the order dt. 28-3-1981 of the Tahsildar.

The petitioner has urged that the power under the Act exclusively conferred on the AC, cannot be exercised by the Tahsildar and, therefore, the eviction order issued by him is without jurisdiction and power.

In S.V. Krishnappa v. Munichannappa, WP 5516/79 dt. 16-9-82, a Division Bench of this Court rejecting the very contentions urged for the petitioner has upheld the validity of the Act. In this view, the challenge of the petitioner to the validity of the Act is liable to be rejected.

As the petitioner does not propose to pursue his challenge to the order of the AC, normally this Court should decline to go into its validity and reject that challenge as not pressed. But, the nature of the order made by the AC is so curious and opposed to the Act and the AC will be really acting as a Tribunal in deciding the case. It is proper for this Court to examine and decide its validity. In this view, I propose to examine the validity of the order dt. 9-6-1980 of the AC in the first instance.

Let me first read the order of the AC. That order reads thus: x x x

Under the sale deed dt. 11-8-1975 respondent No. 3 has sold the land granted to her within the prohibited period. In that deed there is a recital to the effect that she is selling the land in dispute to purchase another land. But still I will assume that the petitioner and respondent No. 3 mutually exchanged their lands and that it is only an exchange as found by the AC and examine the correctness of his order on that basis itself.

The term ''transfer'' defined in S. 3(c) of the Act includes an exchange also. Under the Act, an exchange is also a transfer and, therefore, falls within the sweep of the. Act. Hence, an inquiry into the meaning of the term ''exchange'', incidents, mutual rights and obligations of the contracting parties to an exchange under other laws like the Transfer of Property Act and the Indian Contract Act is not called for. Even if the finding of the AC on facts is correct, in such an event also, the AC was bound to annul the transaction in so far as it related to the granted land and direct its restoration to the grantee leaving the petitioner to work out his remedies in respect of his own land delivered to the grantee. On this conclusion, the order of the AC cannot be upheld.

Under the Act, the AC was exercising a special jurisdiction conferred on him and was not exercising a general jurisdiction conferred on an ordinary Civil Court. In this view also, it was not open tothe AC to decide matters of a Civil nature.

The sale deed dt. 11-8-1975 expressly stipulates that it is an out and out sale of the granted land by respondent No. 3 in favour of the petitioner. The AC, exercising limited jurisdiction, should have confined himself to the express terms of that deed. If he had confined his inquiry to the matters arising under the Act and the terms of the deed, the AC was bound to hold that it was an alienation in contravention of the non-alienation clause and was liable to be annulled under the Act.

The Act and the Rules made under the Act is a complete code in itself. In deciding cases arising under the Act, the AC cannot rely on any provision in the Land Revenue Act. Hence, it was not open to the AC to fall back on S. 25 of the LR Act and ratify the ''exchange transaction'' and drop the proceedings.

Even otherwise, the inherent power saved by S. 25 of the LR Act cannot be exercised in derogation of a specific provision made in a special Act or the LR Act itself. In this view also, the order of the AC cannot be upheld.

Without any doubt, the alienation made by respondent No. 3 was in contravention of the non-alienation clause and was liable to be annulled under S. 4 of the Act.

On the above conclusion, it is proper to quash the impugned order and direct the AC to issue a proper order in that behalf and enforce the same in accordance with the Act and the Rules.

Sri B.V. Prabhakar, learned counsel for the petitioner, contends that the eviction order issued by the Tahsildar is unauthorised and illegal.

The Act and the Rules have conferred exclusive power to deal with all matters including the enforcement of the order made thereunder only on the AC of the area and not on any other authority. R. 6 of the Rules made under the Act in unambiguous words confers the power to evict also on the AC and not on any other authority. A Tahsildar is not empowered to enforce or execute the order made by the AC. On what authority the Tahsildar issued the eviction order against the petitioner, is difficult to appreciate. In these circumstances, the eviction order made by the Tahsildar on 28-3-1981 is without jurisdiction and is, therefore, liable to be quashed.

Earlier, I have held that the alienation made under the registered deed dated 11-8-1975 was void and that possession of land sold under that deed has tobe restored to respondent No. 3. But, this does not prevent the petitioner to work out his remedies for restoration of the land sold by him to respondent No. 3 on the basis of his plea that it was a case of mutual exchange.

Without any doubt, the order made by the AC is a strange and curious order. If the AC had carefully read the Act at least once, if not many times, he would not have made the order made by him in the case. I am distressed to note at the casual and inept manner in which the AC and the Tahsildar have dealt with the matter. In order to enable Government to suitably instruct its officers and to avoid the infirmities noticed in the case, I direct a copy of this order be sent to the Chief Secretary to Government also.

In the light of my above discussion, I make the following orders and directions:

(a) I dismiss this writ petition in so far as it relates to the challenge to the Act;

(b) I quash order No. SP PTL 71/ 79-80 dt. 9-6-1980 (Annexure-C) of the Asst. Commissioner, Chitradurga and direct him to issue an appropriate order declaring the alienation made by respondent No. 3 to the petitioner as void alienation and take further steps to execute that order in accordance with the Act and the Rules;

(c) I quash the eviction order dated 28-3-1981 (Annexure D) of the Tahsildar, Hiriyur. But, this order does not prevent the Asst. Commissioner from executing the order to be made by him.

Writ petition is disposed of in the above terms. But, in the circumstances of the case, I direct the parties to bear their own costs.

After I dictated the order disposing of the writ petition, learned counsel for the petitioner seeks for grant of certificate of fitness to appeal to the Supreme Court under Arts. 132 and 133 of the Constitution and for stay of operation of my order.

An order made by a single Judge of this Court which is appealable before a Division Bench is not final. Hence, it is not open to a single Judge of this Court to grant certificate of fitness to appeal to the Supreme Court under Arts. 132 and 133 of the Constitution, I, therefore, reject the prayer of the petitioner for a certificate of fitness to appeal to the Supreme Court.

While issuing rule nisi, this Court had stayed the operation of the impugned orders which have, been in force ever since then. In Krishnappa''s case, WP 5516/79 dt. 16-9-82, the Division Bench of this Court, while granting a certificate of fitness to appeal to the Supreme Court has granted stay for a period of 3 months. In these circumstances, it is just and proper to stay the operation of my order for a period of 3 months to enable the petitioner to move the Supreme Court in special leave to appeal and seek for stay. I, therefore, stay the operation of my order for a period of 3 months from this day.