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Karnataka High Court
NIRVANAPPA - Appellant
Versus
DEPUTY COMMISSIONER, HASSAN DISTRICT - Respondent
Decided On : 10-06-04
W.P. : 26608 of 2004
Constitution of India - Article 341 -Alienation of land granted to a member of Adi Karnataka Community -Land granted under Rule 43-G of Mysore Land Revenue Code, 1888 -Provisions of Karnataka SC & ST (PTCL) Act, 1978 are applicable -Sale invalid. See, Karnataka SC & ST (PTCL) Act, 1978 -Section 4.
Cases Referred:
Distinguished: 1998(6) Kar. L. J. 30 (FB): ILR 1999 Kar. 634 (FB).
Land granted under
MYSORE LAND REVENUE CODE, 1888 - Rule 43-G -Land granted under -Is always a concessional grant -Hence, non-alienation clause applies.
[D. V. Shylendra Kumar, J]: the very provisions namely rule 43-G which governs such grants indicate that when such a grant is in favour of a person belonging to scheduled caste, the first Rs. 200/- of upset price even when one is fixed is waived and in respect of the balance of the upset price such a person belonging to the scheduled caste is allowed installment facility to pay the balance in three equal installments. If this is the legal position, it is inevitable that in respect of grants made in favour of a scheduled caste person, whether it is a free grant or one after fixing an upset price, the amount collected from the person is never the market price of the land granted in favour of such a person. It is always at a concession of 100% of the upset price being waived if the upset price is less than or equal to Rs. 200/- and thereafter on installment facility. Therefore, the land granted in favour of the scheduled caste person in terms of Rule 43-G(1) of the Rules which is always a concessional grant attracting 15 years non-alienation clause under sub-rule (4) of Rule 43-G of the Rules.
Cases Referred: Distinguished: 1998(6) Kar. L. J. 30 (FB): ILR 1999 Kar. 634 (FB).
Alienation of granted land
KARNATAKA SCHEDULE CASTE AND SCHEDULE TRIBES (PROHIBITION OF TRANSFER OF CERTAIN LANDS) ACT, 1978 - Section 4 -Alienation of granted land -Land granted under Rule 43-G of Mysore Land Revenue Code, 1988 -Is for concessional price -Alienation within prohibitory period without permission of Governments invalid.
[D. V. Shylendra Kumar, J]: Examination of the provisions of the Karnataka Land Revenue Code, 1888, indicates that any number of concessions are provided to such class of persons and conditions are imposed to ensure that the grant is sustained in favour of the grantee lest such grantees lose the land by fritting away the grant by other inducements. The conditions are imposed to dissuade and to deter other persons from eyeing such granted land by and obtain sale deeds in their favour at no cost or nominal cost and deprive the benefit to the grantees whether by purchasing the land by paying proper consideration or by inducing such persons who ultimately lose the land. In such a scenario, when the petitioner sets up a case that the land in question had been granted on receipt of full market value, the onus lies on the petitioner not only to take a specific stand through a proper plea but also to make good that plea by providing cogent material to support the plea. It should be positively proved by the persons who take up such a plea. It is the petitioner who has taken this stand and the burden is upon the petitioner to prove the same.
Cases Referred:
Distinguished: 1998(6) Kar. L. J. 30 (FB): ILR 1999 Kar. 634 (FB).
Burden of Proof
KARNATAKA SCHEDULE CASTE AND SCHEDULE TRIBES (PROHIBITION OF TRANSFER OF CERTAIN LANDS) ACT, 1978 - Section 4 -Burden of proof -Plea that, land was granted for a price representing the market price then prevailing -Transferee to prove with specific plea and supporting evidence.
[D. V. Shylendra Kumar, J]: Submission of Counsel for the petitioner is that proof for such a thing is only in the records maintained by the revenue authorities and if those are not forthcoming, no blame can be laid on the petitioner; that it should be taken that the authorities could not have given a finding without verifying the original records and therefore it should be taken that the absence of a finding given by the authorities in the context of such a plea or stand, is sufficient to invalidate the orders.
Validity of sale
KARNATAKA SCHEDULE CASTE AND SCHEDULE TRIBES (PROHIBITION OF TRANSFER OF CERTAIN LANDS) ACT, 1978 - Section 4 -Validity of sale -Granted land sold within period of non-alienation without permission of Government -Transferee sold the land after expiration of non-alienation period -If second sale is valid -As the very first transfer is illegal, subsequent transfers cannot be legal.
[D. V. Shylendra Kumar, J]: In the first instance, though it is sought to be contended that the second sale is of the year 1991, what one has to examine is the transaction which is the first in the series and as to whether the first transaction is in violation of any of the terms of the grant, it is not in dispute that the first sale transaction was in the year 1973 i.e., within about 9 years of the date of the grant. It definitely is a transaction which is in violation of the term of the grant condition being 15 years non-alienation. Therefore, the argument that reckoned from the date of the second sale i.e., from 8-3-1991, there is no violation of the condition of the grant cannot be accepted.
BURDEN OF PROOF - Sale of land -Land granted to a person belonging to Scheduled Caste -Plea that, land was granted for a price representing the market price then prevailing -Transferee to prove with specific plea and supporting evidence.
Cases Referred:
Distinguished: 1998(6) Kar. L. J. 30 (FB): ILR 1999 Kar. 634 (FB).
Constitution of India -Alienation of land granted to a member of Adi Karnataka Community -Article 341 -Alienation of land granted to a member of Adi Karnataka Community -Land granted under Rule 43-G of Mysore Land Revenue Code, 1888 -Provisions of Karnataka SC & ST (PTCL) Act, 1978 are applicable -Sale invalid. See, Karnataka SC & ST (PTCL) Act, 1978 -Section 4.
Cases Referred:
Distinguished: 1998(6) Kar. L. J. 30 (FB): ILR 1999 Kar. 634 (FB).
MYSORE LAND REVENUE CODE, 1888 - Dharkast proceedings
Dharkast proceedings -Land grant -It is very rare that, land is granted for full market price -Hence, are subject to conditions.
[D. V. Shylendra Kumar, J]: Under the Land Grant Code and particularly in Dharkhast proceedings, it is rarely that a land is granted for full market price. The very grant by the Government is in favour of persons who are landless, who are socially backward, economically weak and to rehabilitate and provide some sustenance to them, such agricultural lands of the Government are granted in favour of such persons.
Cases Referred:
Distinguished: 1998(6) Kar. L. J. 30 (FB): ILR 1999 Kar. 634 (FB).
( 1 ) WRIT petitioner is a person who claims to be a purchaser of a granted land to an extent of 3 acres in Survey No. 51/4 at Somapura Village, mallipatna Hobli, Arakalgud Taluk, Hassan District. It is the case of the petitioner that he had purchased this land in terms of sale deed 8-3-1991 from one Sri Eraiah, father of the respondent 3 in this petition and the original grantee of this extent of land.
( 2 ) THE land in question appears to have been granted to said Sri eraiah in the year 1964 under the Dharkhast proceedings as a person belonging to scheduled caste community and free of cost. The record indicates that the condition of non-alienation for a period of 15 years from the date of grant had been imposed.
( 3 ) THE son of said Sri Eraiah had filed an application before the assistant Commissioner, Sakleshpur Sub-Division, Sakleshpur under the provisions of Section 5 of the Karnataka Scheduled Caste and scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978, praying for invalidating the sale transaction and for restoration of the land. The Assistant Commissioner after issue of notice to the petitioner held an enquiry and accepted the application and recorded a finding that the land in question had been granted to the father of the applicant Sri eraiah who was a person belonging to Adi Karnataka Community a scheduled Caste, in the year 1964 with a condition that it should not be alienated for a period of 15 years and such a land had been sold on 25-1-1973 and as such this transaction and all other subsequent transactions under the sale deed are all void and in this view of the matter resumed the land free of all encumbrances and directed restoration of the same in favour of the applicant.
( 4 ) THE petitioner being aggrieved by this order had preferred an appeal to the Deputy Commissioner. The Deputy Commissioner, on examination of the appellant's case, found that the sale transactions were being in violation of the terms of the grant particularly the sale of the year 1973; that the order passed by the Assistant Commissioner was one which did not call for interference and accordingly dismissed the appeal.
( 5 ) IT is aggrieved by these orders, the present writ petition has been filed contending that the orders passed by the authorities below is not in accordance with law, that it is not in terms of the provisions of the Act, that it is contrary to the decisions rendered by this Court etc.
( 6 ) SRI Jayakar Shetty, learned Counsel appearing for the petitioner has urged mainly two contentions. It is the first submission of the learned Counsel that the petitioner had taken a specific stand of the land having been granted with an upset price to the grantee, the condition of 15 years could not operate; that no condition could have been imposed and in spite of such clear stand having been taken by the petitioner, the authorities below have not given a categorical finding on this aspect and have blindly accepted that the condition of 15 years as the prohibited period for alienation operated and have proceeded to pass orders on such premise which is not sustainable and requires to be set aside.
( 7 ) SECOND submission of Sri Jayakara Shetty is that the grantee had sold the land in the year 1973. The grantee himself had repurchased the land in the very year and it was the very grantee who had subsequently sold the land in favour of the purchaser in terms of sale deed dated 8-3-1991 and at the time when the sale deed was executed in favour of the petitioner in the year 1991, even the period of 15 years had already elapsed and therefore the authorities are clearly in error in holding that it was sale in violation of the terms of the grant.
( 8 ) IN view of the assertion of the learned Counsel for the petitioner that the record did not reveal any material to indicate either that it was a grant as such or that it was a grant with 15 years non-alienation condition, learned Counsel for the Governm
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