Sri. Bheemappa vs Halyanaika and Others

D.V. Shylendra Kumar, J.—Petitioner, is a purchaser of a land, granted in favour of a person belonging to Scheduled Caste community. The grant was in terms of a grant dated 19.10.1956 to the extent of 4 acres 14 guntas in Sy. No. 23/1 of Sadapura Village, Shikaripura Taluk, Shimoga District. It was in favour of one Rama Naika a person belonging to Banjara Community.

Such land was sold by the said Rama Naika in terms of a sale deed dated 12.4.1965 in favour of one Thotappa. Petitioner is a purchaser from this Thotappa in terms of another sale deed dated 7.4.1982.

Subsequent to the provisions of Karnataka Scheduled Castes and Scheduled Tribes (PTCL) Act, 1978, coming into force, the son of the original grantee by name Halyanaika filed an application before the Assistant Commissioner praying for invalidating the sale transaction, as the land in question had been initially sold in violation of the terms of the grant and for restoration.

The Assistant Commissioner, however, in terms of his order dated 3.5.2003 rejected the application on an erroneous understanding that the purchaser of the land had perfected his title even by adverse possession and as such the application was liable to be rejected.

Being aggrieved by this order, the Appellant carried the matter to the Deputy Commissioner by way of an appeal u/s 5-A of the Act. The appeal having been allowed and the Deputy Commissioner having set aside the order and having allowed the application and having further directed the Assistant Commissioner to restore the land to the legal heirs of the original grantee, the present writ petition is filed by the purchaser challenging the legality of these orders.

Learned Counsel for the Petitioner has urged several contentions. The first submission is that the Assistant Commissioner did not hold an enquiry as to whether the original grantee belonged to Scheduled Caste community, that in the absence of a proper enquiry and finding that the grantee did belong to the Scheduled Caste, he could not have proceeded further in the matter on the premise that the provisions of the Act apply; that as the application had been rejected by the Assistant Commissioner, there was no occasion for the Petitioner to pursue this aspect. However, the Deputy Commissioner only on the ground that the finding given by the Assistant Commissioner is not correct, has reversed the order of Assistant Commissioner and as such the impugned orders are not sustainable. In this regard, learned Counsel for the Petitioner has placed reliance on an unreported Division Bench decision of this Court dated 7th November 1995 rendered in W.P. No. 2807 of 1991 in the case of Mahalingappa v. The Assistant Commissioner and Ors. Placing reliance on this decision, submission of the learned Counsel for the Petitioner is that in the absence of an enquiry as to the determination of the community of the original grantee the order of the Assistant Commissioner is lacking and as such the Deputy Commissioner should have remanded the matter to the Assistant Commissioner for such enquiry and failure on his part is a matter which warrants interference by this Court in exercise of writ jurisdiction under Article 227 of the Constitution of India and as such the matter requires to be remanded to the Assistant Commissioner for such purpose.

Learned Counsel for the Petitioner has placed reliance on another decision of this Court in Pedda Reddy Vs. State of Karnataka, . The other submission of the learned Counsel for the Petitioner is that the Petitioner has perfected his title even by adverse possession, that he had perfected his title by enjoying the land as his own for a period of more than 12 years as against his vendor a private person, and as such placing reliance on the decision of the Supreme Court in K.T. Huchegowda v. Deputy Commissioner, reported in I.L.R 1994 Kar 1839. Learned Counsel for the Petitioner submits that the authorities could not have invalidated the transaction and that the provisions of the Act could not have been applied to deprive the Petitioner of a property in respect of which he had perfected his title.

I have heard Sri N.R. Naik, learned Counsel for the caveator- 1st Respondent and the learned HCGP for Respondents 2 and 3. Learned HCGP and Sri. Naik, learned Counsel have supported the order inter alia pointing out that the original grantee in fact belonged to Banjara Community, which had been classified as Scheduled Caste as per the Presidential Order 1950 that the later amendments only added the synonyms or the dialects of this community and in the present case the subsequent additions to this order of 1950 is of no consequence as the Banjara Community had been notified as Scheduled Caste even in Clause 17 of the Presidential Order of the year 1950.

It is also the submission of the learned HCGP and Sri Naik, that insofar as the question of adverse possession is concerned, the land in question belonged to the Government and it was not in the ownership of the grantee; that the land had been granted to such person subject to certain conditions and for use and enjoyment, that the ownership remained with the Government and the settled law insofar as prescribing the title by adverse possession as against the Government is concerned, it should be for a period of 30 years adverse to the interest of Government and not otherwise.

Learned Counsel for the Petitioner has filed an application for placing before this Court the objections that had been raised by the Petitioner before the Assistant Commissioner. The application is allowed and the additional document Annexure-D is received on record. It is inter alia averred that the Petitioner does not belong to Scheduled Caste/Scheduled Tribe that the land in question was granted under the concerned Act and Rules.

Case of the Petitioner is that the grantee was not a person belonging to the Schedule Caste/Scheduled Tribe on the date of the grant. In this regard Sri Naik, learned Counsel for caveator/1st Respondent submits that the community to which the grantee belonged is not in dispute and is a fact evidenced by the recitals under the sale deed dated 12.4.1965 which recites that the seller belonged to Banjara Community.

Submission of the learned Counsel for Petitioner is that when once the Petitioner had asserted that the original grantee did not belong to S.C. community, not holding of an enquiry by the Assistant Commissioner to verify this aspect of the fact is fatal to the proceedings and attracts the ruling of this Court in Mahalingappa''s case and therefore the matter requires to be remanded to the Assistant Commissioner for holding a fresh enquiry for such purpose in terms of the rules.

It is not in dispute that the original grantee belonged to Banjara community. Banjara community as already referred to above is a community which figure in the Presidential order of the year 1950 itself. If there is no dispute on this aspect and the grantee did belong to a Scheduled Caste, even as per the Presidential notification, there is no occasion for this Court to remand the matter to the Assistant Commissioner nor any useful purpose will be served by it as even on the admitted position the grantee belonged to Scheduled Caste community. Therefore the decisions relied upon by the learned Counsel for the Petitioner both in Pedda Reddy''s case and Mahalingappa''s case is not of any assistance to the Petitioner.

The 2nd argument that the Petitioner had perfected his title even by adverse possession is also equally not tenable. It is settled law that as against the Government if one has to prescribed title by adverse possession enjoyment should be for a period of 30 years and the period for which the Petitioner had enjoyed by way of purchaser from 1982 is of no consequences as even by then the purchaser viz., Thotappa had not perfected his title and a person claiming title under such person does not derive any better title, this position is clear even as per the decision of the Supreme Court in Sunkara Rajyalakshmi v. State of Karnataka, reported in ILR 1987 (3) SC 2076.

One another argument advanced by the learned Counsel for the Petitioner is that in a case where the grantee is an absolute grantee and without any further conditions or fulfillment to be made on the part of the grantee, there cannot be imposition of conditions and the conditions does not operate. The submission of the learned Counsel for the Petitioner is that grant made in favour of the original grantee was for an upset price and therefore, no conditions could have been imposed.

In the first instance, it is not the plea taken before the Assistant Commissioner in terms of the objections a copy of which is filed before this Court. Assuming that it is a grant on a upset price, there should be a clear finding as to whether it is at a reduced or upset price which is equal to the market price. That is not the case or plea urged by the Petitioner before the authorities and a submission made at this stage, as an argument by the learned Counsel for the Petitioner cannot be entertained by this Court. It is based on the argument that the grant was on an upset price that reliance is sought to be placed on the decision of Pedda Reddy v. State of Karnataka. As there is no foundation to put forth such an argument, the argument can neither be entertained nor the decision in Pedda Reddy''s case is of any help to the Petitioner to advance his case in this petition. The contentions urged on behalf of the Petitioner fails, writ petition is dismissed.