Prabhudevaru and Gangadaraiah vs Smt. Thimmamma and Others

B. Manohar, J.—These appeals are filed by the Petitioners in W.P. No. 14947/2008, being aggrieved by the order dated 14 6-2010 passed by the learned Single Judge, wherein the learned Single Judge dismissed the writ petition confirming the order passed by the Deputy Commissioner.

The brief facts of the case as are follows:

The land bearing Sy. No. 12/1 measuring 2 acres 20 guntas situated at Honnashettyhalli village, Arasikere Taluk was granted in favour of Thimmabhcvi as per Darkhast Proceedings No. LND/SCST/ASK/67/43 dated 28-4-1944. Thereafter, the said property was mutated in the name of Thimmabovi in M.R. No. 7/45-46. On 30-5-1961, Thimmabovi sold 20 guntas of land in favour of the father of the second Appellant, thereafter, on 12-7-1964, the said grantee sold 2 acres of land in favour of Bettegowda. On 11-7-1969, the Grandfather of the first Appellant purchased the said 2 acres of land from the said Bettegowda. In view of coming into force of the Karnataka Scheduled Caste & Scheduled Tribe (Prohibition of Transfer of Certain Lands) Act (''the Act'' for short), the son of the original grantee Dasappa made an application for restoration of the land contending that the granted land has been alienated in contrary to the conditions of the grant. A notice has been issued to the purchaser. The purchaser filed W.P. No. 3268/1981 before this Court being aggrieved by the notice issued by the Assistant Commissioner. This Court, on 21-9-1982 dismissed the said writ petition. Thereafter, the Assistant Commissioner by an order dated 28-11-1984 rejected the application filed by Dasappa on the ground that the land granted has been alienated after expiry of the non-alienation period of 10 years. While granting the land, a condition imposed was that the land should not be alienated for a period of 10 years. That non-alienation period has already expired, hence the Act is not. applicable to the case and rejected the application. Thereafter, the said Dasappa made a representation to the Assistant Commissioner. Since the said representation was not considered, Dasappa filed a writ petition in W.P. No. 9750/2001. This Court by an order dated 10-4-2001 directed the Assistant Commissioner to consider the representation and pass appropriate order in accordance with law. In pursuance to the order passed by this Court, the Assistant Commissioner considered the application filed by the said Dasappa, by an order dated 8-1-2004 dismissed the application for restoration of the land on the ground that on 28-11-1994, the application filed by Dasappa was already rejected, and no appeal has been preferred against the said order. Hence, the application cannot be reconsidered. Being aggrieved by the order dated 8-1-2004 as well as the order dated 28-11-1984 passed by Assistant Commissioner, the said Dasappa preferred an appeal before the Deputy Commissioner. During the pendency of the appeal before the Deputy Commissioner, the said Dasappa died and Respondents 1 to 4 were brought oil record as legal representatives of the deceased Dasappa. The Deputy Commissioner after considering the matter and perusing the original grant orders found that the land in question was granted in the year 1944. The Mysore Land Revenue Code, 1888 was the Rule in force at the time of grant. As per Rule 43(8) of the said Code, the grant of land between the year 1938 to 1953 is subjected to non-alienation forever. In the instant case, the land was granted on 28-4-1944 and 1938 Rules are applicable. Hence, the granted land cannot be alienated forever. The Assistant Commissioner without verifying the said records dismissed the claim petition. Accordingly, the Deputy Commissioner by an order dated 28-10-2008, set aside the order passed by the Assistant Commissioner and ordered for restoration of the land to the legal representatives of the original grantee.

Being aggrieved by the order passed by the Deputy Commissioner, the Appellants filed W.F. No. 14947/2008. This Court by an order dated 14-06-2010 dismissed the writ petition and upheld the order passed by the Deputy Commissioner, holding that as per Rule 43(8) of the Mysore Land Revenue Code, 1888 there is prohibition for alienation of granted land forever. Hence, the alienation made by the original grantee in favour of the Petitioners is contrary to law and dismissed the writ petition. Being aggrieved by the same, the Appellants have preferred this writ appeal.

Sri. Swamy Shivaprakash, learned Counsel appearing for the Appellants contended that the order passed by the learned Single Judge confirming the order passed by the Deputy Commissioner is contrary to law. The son of the original grantee filed restoration application in the year 1979; the Assistant Commissioner rejected the said application on 28-11-1984 and the said order has become final. Suppressing the necessary facts, the Respondent, filed W.P. No. 9750/2001 and the matter was reopened and the Assistant Commissioner once again rejected the application on 8-1-2004 on the ground that the order dated 28-11-1984 has become final and no appeal has been preferred. The Respondents, who are the legal representatives of the deceased Dasappa preferred an appeal challenging the order dated 28-11-1984 as well as the order dated 8-1-2004 before the Deputy Commissioner. The Deputy Commissioner without condoning the delay allowed the appeal, which is contrary to law. The Respondents have also not produced any records or the grant certificate. In the absence of the same, the Deputy Commissioner ought not to have ordered for restoration of the land. The learned Single Judge without considering all these aspects of the matter, only on the ground that during the period of grant of land, 1938 Rules was applicable and there was permanent prohibition for alienation of the land as per the existing Rules, which is contrary to law and sought for setting aside the same by allowing this appeal.

On the other hand, Sri. K. Krishna, the Additional Government Advocate for Respondents 8 and 9 as well as Sri. B. Shyam Prasad, learned Counsel appearing for contesting Respondents argued in support of the order passed by the learned Single Judge as well as the Deputy Commissioner and contended that the Assistant Commissioner without looking into the grant order and the relevant rules existing at the relevant point of time held that the condition imposed in the grant certificate that the land should not be alienated within a period of 10 years dismissed the application filed by the Respondent on the ground that the alienation has been made after expiry of 10 years, which is contrary to law. If there is any dispute between the Rules and the Conditions imposed in the grant certificate, the Rules have to be prevailed over the conditions imposed in the grant certificate and sought for dismissal of the appeal confirming the order of the learned Single Judge as well as the Deputy Commissioner.

We have carefully gone through the orders impugned in the above writ appeals and considered the arguments of the learned Counsel appearing for the parties.

The undisputed facts are that the land in question was granted in the year 1944. The existing Rules of 1938 are applicable for the grant made between the years 1938 to 1953. As per Rule 43(8) of 1938 Rules, the land granted between the aforesaid period cannot be alienated forever. However, the original grantee alienated the land in the years 1961 and 1964 which is contrary to the Rules. However, an application was filed by the son of the original grantee for restoration of the land and the Assistant Commissioner rejected the same on an erroneous ground, without looking into the existing rules at the relevant period. The representation made by the son of the original grantee was not considered. He filed a writ petition in W.P. No. 9750/2001. This Court directed the Assistant Commissioner to consider the representation in accordance with the Act. The Assistant Commissioner once again considered the application of the legal representatives of the original grantee for restoration of land and rejected the same on 8-1-2004 without adverting to the Rules existing at the relevant period. On an appeal, the Deputy Commissioner after considering the entire materials and also the Rules existing at the relevant period came to the conclusion that there is permanent prohibition for alienation of the land granted between the years 1938 to 1953 under Rule 43(8) of the Land Revenue Code, 1888. The Deputy Commissioner further declared that the sale deed executed in favour of the Appellant is null and void and ordered for the restoration of the land in favour of the legal representatives of the original grantee. Being aggrieved by the same, a writ petition was filed. Learned Single Judge dismissed the writ petition and thereafter the present writ appeal is filed. The only ground urged in the writ, appeal is that in the year 1984 itself the application filed by the legal representatives of the original grantee was rejected. Thereafter, pursuant to the directions issued by this Court in W.P. No. 9750/2001 the Assistant Commissioner reconsidered the matter and rejected the application once again on 8-1-2004. The said order was questioned before the Deputy Commissioner. The Respondents have not made any application for condonation of the delay in filing the said appeal. The Deputy Commissioner passed the order without condoning the delay in filing the appeal. In order to verify the statement of the Appellants, this Court by its order dated 9-3-2001 passed the following order:

The main contention of the learned Counsel for Appellants is that no application has been filed for condonation of delay and the appeal filed before the Deputy Commissioner has been allowed.

This Court had directed the learned Government Advocate on 12-8-2010 to secure the original order of Annexure-A, The learned Government Advocate to produce the records pertaining to the appeal proceedings before the Deputy Commissioner within a period of one week from today, failing which the person, who is in-charge of the records shall be kept present before this Court with the explanation of disobedience of the order passed by this Court.

Call on 23-3-2011.

Pursuant to the order made by this Court on 9-3-2001, the Additional Government Advocate made available the original records from the Assistant Commissioner as well as the Deputy Commissioner. On verification of records, we found that the contesting Respondents being aggrieved by the order passed by the Assistant Commissioner preferred an appeal before the Deputy Commissioner and also made an application u/s 5 of the Limitation Act for condonation of delay on 14-10-2004. On the said application, the Deputy Commissioner has passed the order on 21-10-2004 condoning the delay and posted the matter for trial. Hence the contention of the Appellants that -the-contesting Respondents have not filed any application for condonation of delay in filing and the Deputy Commissioner has also not condoned the delay in filing the appeal is totally contrary to the records.

Be that as it may, the land has been granted in the year 1944. In terms of the relevant Rules governing such grant i.e. Rule 43(8) of Mysore Land Revenue Code, as notified m the Government notification dated 31-12 1938, a land of this nature was subject to the condition that it should not be alienated for all time to come.

In the instant case, the granted land has been alienated in the years 1961 and 1964 in violation of the grant rules. Hence, the Appellant is not entitled to any relief in the writ petition. There is no infirmity or irregularity in the order passed by the learned Single Judge and the Deputy Commissioner. The Appellant has not made out any case to interfere with the orders impugned in an intra court appeal. Accordingly, we pass the following:

ORDER

The write appeals are dismissed