Smt. Venkatamma vs State of Karnataka and Others

The petitioner-Smt. Venkatamma, wife of Gopalappa has sought for quashing the order of the Assistant Commissioner, Kolar at Annexure-A and the Special Deputy Commissioner at Annexure-B for the reasons set out in the writ petition.

The petitioner has taken a number of grounds to attack the impugned orders. The matter arises in this way:

After coming into force of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 (hereinafter referred to as the Act), the 4th respondent-Muniyappa approached the Assistant Commissioner with an application seeking the benefit of the ''Act''. His case was that 1 acre of land in Survey No. 126 of Kavathanahalli village, Mulbagal Taluk, Kolar District was granted to his father Munivenkatappa during 1950-51 under the Karnataka Land Grant Rules then prevailed, subject to certain conditions. According to him, there was a non-alienation clause imposed in the grant for a period of ten years and that the granted land came to be sold in favour of the petitioner by registered sale deed dated 3-10-1963 for a sum of Rs. 500/-. Therefore, the applicant has sought for declaring the sale of granted land as null and void as required under Section 4 of the Act and to restore the granted land in his favour under Section 5 of the Act.

The Assistant Commissioner, Kolar, after having notified both parties held an enquiry in LND.SC.ST.26/1983-84 and passed the impugned order at Annexure-A, dated 21-3-1984. Whereby he declared that since by contravening the condition of the grant the granted land came to be sold in favour of the petitioner, the said alienation cannot be sustained. He, therefore, directed eviction of the petitioner-Venkatamma in his impugned order dated 21-3-1984.

Aggrieved by this order of the Assistant Commissioner, the matter was taken up before the Deputy Commissioner, Kolar in appeal. The learned Deputy Commissioner though has referred to several aspects of the matter raised in the appeal and also the findings recorded by the Assistant Commissioner, held that the conclusion reached by the Assistant Commissioner was justified. Thus, the appeal came to be dismissed. Hence, this petition under Articles 226 and 227 of the Constitution of India.

Sri Srikantegowda, learned counsel for the petitioner took me through the impugned orders at Annexures-A and B respectively. He urged the following two points in support of the petition:

(i) By a perusal of the original records produced by Sri Siddagangaiah, learned High Court Government Pleader it is seen that Munivenkatappa-the father of the 4th respondent-Muniyappa was enjoying the leasehold rights in respect of Survey No. 126 to the extent of 30 guntas even earlier to the grant of land made in his favour by the competent authority. Therefore, when the competent authority subsequently passed an order by which occupancy right is conferred upon Munivenkatappa, and in such a case, Rule 43-G of the Karnataka Land Grant Rules cannot be invoked for the purpose of imposing any condition. The argument is that Rule 43-J governs such a grant. To that extent the learned counsel submitted that the approach of both the authorities below in holding that there was a condition imposed preventing the grantee from alienating the granted land is not correct and it is illegal and the conclusion reached by both the authorities cannot be sustained.

(ii) Even though the grant of land is said to have been made by way of confirmation by the competent authority on 7-8-1963, and the sale of land has taken place on 6-10-1963, by production of the original records, the competent authority having considered the enjoyment of the leasehold rights by Munivenkatappa, certain orders came to be passed during the year 1951-52. Unfortunately, both the Assistant Commissioner and the Deputy Commissioner failed to apply their mind to this fact appreciating how the ultimate confirmation of occupancy right came to be granted on 7-8-1963. The submission is, even if the grant of land was made in favour of Munivenkatappa on 7-8-1963 in exercise of the powers under Rule 43-J, even then, no condition could be imposed. Therefore, Sections 4 and 5 of the Act cannot be attracted. In that view also the impugned orders at Annexures-A and B are liable to be quashed.

4th respondent-Muniyappa has been served and remained unrepresented. Though Sri Siddagangaiah, learned High Court Government Pleader appeared and argued for respondents-1 to 3 by producing the original records he has not been able to advance any better argument to sustain the impugned orders of the authorities below, because the point that is in favour of the petitioner is fully covered by a Division Bench Judgment of this Court in Siddamma v Chikkegowda & Others, 1991(1) Kar. L.J. 210.

Before referring to the Ruling of this Court in Siddamma''s case, it is better to refer to certain salient features disclosing the factual position in this case. I perused the original records made available by learned Government Pleader. At the outset it is seen that in a proceedings of the Tahsildar, Mulbagalu found at page 12 of the original records in proceedings No. RD 371-71 RM 65-41-42, by an order dated 11th of April, 1942 the right of cultivation came to be conferred on Munivenkatappa applying the relevant Rules of Land Grant prevalent on that day. In other words, right from 1942 Munivenkatappa has been enjoying the leasehold rights in respect of 30 guntas with the permission of the authorities. That means, even before the land came to be granted in his favour on 7-8-1963, Munivenkatappa has been enjoying the leasehold rights in respect of this land. Again, it is seen from the perusal of the entry made in the relevant column of R.O.R. found at page 7 of the original records that Munivenkatappa was enjoying leasehold rights granted to him under the ''grama-scheme'' before confirmation of the occupancy right in his favour on 7-8-1963. To that extent there is no doubt that Munivenkatappa was enjoying the leasehold rights even before the confirmation of the occupation right by the competent authority on 7-8-1963. This supports the submission made by Sri Srikantegowda, learned counsel for the petitioner.

There is one more aspect which is necessary to be noticed. There is a reference to LR No. 220/50-51 found on the ''saguvali chit'' issued in this case disclosing that certain proceedings had taken place in favour of Munivenkatappa as far back as in the year 1952. Whether the competent authority has taken cognizance on the right of the cultivator Muniyappa even before granting the occupancy right on 7-8-1963 is another aspect.

Admittedly, the granted land came to be sold in favour of Venkatamma-the petitioner herein on 6-10-1963. From the date of the sale, the purchaser had been in possession and enjoyment of the land in question.

A question which came up for consideration in Siddamma''s case supra before the Division Bench was that where a person who had been enjoying leasehold right on a land and that considering the said rights subsequently if the competent authority were to confer occupancy right under the Land Grant Rules whether Rule 43-G could be applied for the purpose of imposing the condition. Answering to this question I have held in Shivanna v State of Karnataka, 1989(1) Kar. L J. 294, that in such a case Rule 43-G cannot be for the purpose of imposing any condition but Rule 43-J would come to play. Applying Rule 43-J, no condition could be imposed during the grant of land in favour of such persons. Similar view was taken by Justice Balakrishna, as he then was, in W.P. No. 6737/1988.

The Division Bench in Siddamma''s case 1991(1) Kar. L. J. 210 considered the very question and referring to the view taken by me in Shivanna''s case as well as the view expressed by Justice Balakrishna in W. P. No. 6737/1988 held as follows:

"In the case of grant of land under Rule 43-J there is no question of considering the application of other persons. The competent authority concerned is required to find out as to whether the land had been granted for temporary cultivation to the person concerned and secondly as to whether he had fulfilled eligibility for grant of land and once those conditions are found to have been fulfilled, the authority is competent to grant the land. One special feature about the grant is the person concerned would have already been in possession and enjoyment of the land for several years even before the grant of land and he would have invested money and time and engaged in cultivating the land even prior to the grant of land under Rule 43-J. Therefore, for such a grant falling under Rule 43-J no other condition is imposed as is evident from the non-obstante clause with which it begins. As pointed out by the learned Judge, with which we respectfully agree, Rule 43-G cannot be invoked to the grant made under Rule 43-J also for the reason Rule 43-G expressly makes it clear that the conditions prescribed in the said rule is applicable for the grant of lands made under the rule preceding it."

During the course of the Judgment, their Lordships of the Division Bench approved the view taken by me and of Justice Balakrishna referred to above.

Following the decisions referred to above, I have no other alternative but to hold that Annexures-A and B passed by the authorities below are incorrect and improper and they are liable to be quashed.

In the result, the writ petition is allowed and the impugned orders at Annexures-A and B are quashed. Ordered accordingly. No costs.