Tukaram vs R. Veeranna and Others

M.L Pendse, C.J.—Late B, Narasimhadas, the father of the appellant in these three appeals, secured an area of 9 acres 73 cents out of

Survey No. 844 situated at Kamalapur village in Bellary District under an order of grant dated July 27, 1957. The area where the land is situated

was initially part of State of Madras and was brought within the control of erstwhile State of Mysore with effect from October 1, 1953 under the

Andhra State Act, 1953. After the land came within the control and jurisdiction of the erstwhile State of Mysore, order dated September 1, 1955

was issued by Government of Mysore, Revenue Department. The order inter-alia provides that in pursuance of the Standing Orders of Board of

Revenue of Madras and orders of Government of Madras, the Rules which will apply to the assignment of lands in Bellary District shall be as set-

out in the order. Rule 6 inter-alia prescribed that every grant of land shall be subject to the condition that where the grant is made free of cost, the

land granted shall not be alienated for a period of fifteen years from the date of gran. The Grant in favour of appellant''s father was issued on July

27, 1957 under these Rules and being free of cost, the condition of non-alienation for a duration of fifteen years from the date of grant was

inserted.

In spite of the condition of non-alienation for a duration of fifteen years, the grantee alienated an area of two acres to one. Thippanna on December

7, 1971. On the same day an area of two acres ten cents was alienated to respondent-2 while an area of two acres to one Ramappa. Ramappa

subsequently alienated his interest in favour of respondent Nos. 1 to 3.

The Karnataka Government enacted the Karnataka Scheduled Caste and Schedule Tribes (Prohibition of Transfer of Certain Lands) Act, 1978

to provide for the prohibition of certain lands granted by Government to persons belonging to Scheduled Caste and Scheduled Tribes. The

expression ""granted lands"" is defined u/s 3(b) and means any land granted by the Government to a person belonging to Scheduled Caste or

Scheduled Tribe and includes land allotted or granted to such persons under relevant law for the time being in force. Section 4 of the Act inter-alia

provides that any transfer of granted land made either before or after the commencement of the Act in contravention of the terms of grant shall be

null and void and shall not confer any title or interest upon the transferee. Section 5 of the Act provides that the Assistant Commissioner, if satisfied

that the transfer is null and void u/s 4, then the lands can be resumed in favour of the State Government and thereafter regranted to the original

grantee or his legal representative.

The original grantee being a member of Scheduled Caste, on his death, the appellant approached Assistant Commissioner seeking relief u/s 5 of

the Act. The Assistant Commissioner by order dated August 1, 1985 came to the conclusion that the transfers effected by the father of the

appellant were in violation of the terms of grant and therefore the transfers were null and void. The Assistant Commissioner held that the grant was

on condition of non-alienation for a period of fifteen years and that the transfers were effected by the grantee before the expiry of fifteen years. The

contention raised on behalf of the transferees before the Assistant Commissioner was that it was not open to include the condition of non-alienation

for a period of fifteen years in accordance with the order dated September 1, 1955 passed by Mysore Government and condition of non-

alienation could be only for a duration of ten years prescribed under the Rules or orders issued by the board of Revenue, Madras. The Assistant

Commissioner did not accede to the contention. The order of Assistant Commissioner was confirmed in appeal by Deputy Commissioner by order

dated March 11, 1986.

The transferees then preferred three Writ Petitions under Articles 226 and 227 of the Constitution before the learned Single Judge to challenge the

legality of the orders passed by the Assistant Commissioner and Deputy Commissioner. The sole contention which found favour with the learned

Single Judge was that the State of Mysore was not entitled to issue order dated September 1, 1955 in its administrative capacity and over-rule the

Standing Orders of the Board of Revenue of Madras. The learned Judge held that the Mysore Government can supersede the Standing Orders of

the Board of Revenue of Madras only after exercise of Legislative powers and those powers were exercised on October 6, 1960 by enactment of

Rules known as Land Grant (Madras Area and Bellary District) Rules, 1960. The common order of the learned Single Judge allowing the three

Writ Petitions is under challenge in these three appeals.

As the issue in all the three appeals is identical, the appeals are disposed of by this judgment.

The Learned Counsel appearing on behalf of the appellant submitted that the view taken by the learned Single Judge that the condition imposed

while issuing the grant in accordance with Rule 6 contained in the order dated September 1, 1955 is invalid is not correct. It was urged that once

the lands vested in the State of Mysore with effect from October 1, 1953, it was for the Mysore Government to determine on what conditions the

lands will be granted. The Learned Counsel submitted that the assumption of the learned Single Judge that the Standing Orders of the Board of

Revenue of Madras would continue to hold the field till the statutory Rules were passed in the year 1960, is not correct. We find considerable

merit in the submission urged by the counsel.

It is not in dispute that the area, where the lands in dispute are situated, was originally formed part of State of Madras, and with effect from

October 1, 1953 came within the control of former State of Mysore. The lands while forming part of State of Andhra Pradesh were granted in

accordance with the Standing Orders of the Board of Revenue, Madras and it was contended on behalf of the transferees that the Standing Orders

prescribed that the granted lands shall not be alienated for a duration of ten years. Respondents contended that the non-alienation duration of ten

years cannot be enhanced to fifteen years without exercise of Legislative power by framing Rules and it was not permissible for the Mysore

Government to issue administrative instructions in form of government order dated September 1, 1955. We are not impressed by the submission.

Once the lands came within the control and jurisdiction of State of Mysore, then it was for the Mysore Government to decide on what conditions

lands shall be granted. The Mysore Government was not bound to follow the Rules which were prevalent while the lands formed part of Madras.

It is difficult to appreciate how the Mysore Government, who are the holders of the lands, can be compelled to follow the Rules framed by the

Board of Revenue, Madras, in respect of disposal of lands after October 1. 1953. Apart from this consideration, it is difficult to imagine how the

grantee or transferee from the grantee can even claim that though the grantee has violated the conditions under which the grant was made, the same

is not binding. It is not open for the grantee or the transferees from the grantee to approbate and reprobate. In case the grant is accepted and the

benefit is secured, then the liability under the grant cannot be avoided. The Learned Single Judge felt that though the order issued by the Mysore

government on September 1, 1955 specifically provides that the Standing Orders of the Board of Revenue of Madras stands superseded, it was

not permissible for the State Government to do so. We are not able to accede to the reasoning of the learned Single Judge. In our judgment, in the

absence of any Rules prescribing conditions for grant of lands, it was always open and permissible for the State of Mysore to frame Rules. The

lands granted belongs to the Mysore Government and it was for the Government to determine on what conditions the lands should be regranted. In

our judgment, the lands were granted to the father of the appellant with a specific condition that the lands should not be alienated within a duration

of fifteen years from the date of grant. The transfers effected in favour of respondents were obviously in breach of terms of the grant.

Consequently, the provisions of Section 4 of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands)

Act squarely attracted to the facts of the case and the orders passed by the Assistant Commissioner and Deputy Commissioner in favour of the

appellant ought not to have been disturbed by the learned Single Judge. For these reasons the three appeals are required to be allowed.

Accordingly, all the three appeals are allowed and the judgment dated October 10, 1991 delivered by learned Single Judge in W.P.Nos. 9162

to 9164 of 1986 is set aside and that passed by the Special Deputy Commissioner on March 11, 1985 stands restored. In the circumstances of

the case there will be no order as to costs.