A.K. Thippanna Vs. Deputy Commissioner, Shimoga District, Shimoga and Others - Court Judgment

Excerpt:
- sections 152 & 153: [n.k.patil, j] amendment of judgment/decree held, the application is filed as provided under the relevant provisions of the cpc if there is a mistake or wrongly typed or there is any mistake in writing or typing and an error arising out of the occurring from an accidental slip or omission is an error due to careless mistake or omission unintentionally made. but in the present case, detailed order has been passed by the trial court for rejecting the compromise petition as petitioner has failed to comply the orders of the court and the said suit has been dismissed in view of not adducing or leading any evidence. therefore, the court of the considered view that, in this type of litigation, there should be a finality in the matter, since the matter is pending adjudication from 1985 and petitioner having sufficient time has not chosen to file necessary application under the relevant provisions to set aside the order dated 24.7.1989 and after the lapse of nearly one and half decades, has chosen to file the petition and the same has been rightly rejected by the trial court. therefore, on merits also, petitioner has not made out any good grounds to interfere in the order passed by the trial court. -- limitation act, 1963.[c.a. no. 36/1963]. section 5: condonation of delay delay of 36 days in filing the revision petition held, mere making bald statements in the affidavit, without assigning cogent reasons is not a ground to condone the delay. on facts, held, except making a bald statement that the petitioner was suffering from viral fever due to heavy rains in mumbai and the doctor had advised him bed rest, the petitioner has not produced any medical certificate to that effect. the explanation offered by petitioner for condonation of delay does not inspire the confidence of the court and much credibility cannot be given to the same. delay not condoned. - in that view of the legal position the sale of the granted land made by the grantee in favour of the said giriyappa was outside the purview of section 7. as such the conclusion of the deputy commissioner that section 7 was attracted to the transaction is clearly erroneous in law. if neither of these legal requirements is satisfied in respect of a grant made during the relevant period then sub-rule (4) of rule 43-g will not get attracted to the transfer of the granted land and any condition prohibiting its transfer imposed on its grant would be a void condition. the order of the assistant commissioner produced as annexure-a shows that he failed to record his findings on the said legal requirements of rule 43-g(4) on the basis of the admissible material. and the matter is remitted to the assistant commissioner, shimoga with a direction to hold fresh enquiry and dispose it of by a fresh order on merits in the light of the observations made hereinabove and in accordance with law, and after giving opportunity to both parties to effectively participate in the enquiry proceeding.order1. heard.2. it is not in dispute that the land in question measuring 2 acres bearing sy. no. 29 of belliganudu village, channagiri taluk, shimoga district was the government land that was granted to the petitioner's father rangappa by the government under dharkast and the saguvelli chit dated 30-3-1962 was issued to the grantee in respect thereof. the grant was made to him imposing the condition that the land shall not be transferred to any person for a period of 15 years. but the same was sold by him to one giriyappa on 16-6-1966 under a registered sale deed. thereafter, the said purchaser was stated to have borrowed the loan from certain agricultural co-operative society mortgaging the said land. on his default in repayment of the loan, the said land was brought to sale by public auction by the said society and the same was purchased by respondent 3 herein, in that auction under the registered sale deed dated 10-12-1977.3. the grantee rangappa belonged to scheduled caste. after his death his petitioner son made an application before the assistant commissioner praying to restore the said land to him since the same was alienated by his father in violation of the prohibition clause. on that application an enquiry was held by the assistant commissioner and the order at annexure-a dated 5-1-1990 was passed by him ordering eviction of respondent 3 from the land for the purpose of restoration thereof to the former. that order was challenged by respondent 3 in appeal before the deputy commissioner who then passed his order at annexure-d dated 11-5-1996 allowing the appeal and setting aside the assistant commissioner's order on the ground that the said land was mortgaged by the earlier purchaser giriyappa to a co-operative society, and their mortgage was exempt from applicability of the act by virtue of section 7 thereof.4. petitioner has challenged the legality thereof in this writ petition and has prayed to quash the same on the ground that the same is illegal.section 7 of the act reads:'7. exemption.--nothing in this act shall apply to the transfer of granted lands in favour of the government, the central government, a local authority or a bank either before or after the commencement of this act'.it becomes manifest from a plain reading of this provision, that all transfers of the granted lands made 'in favour of government, centralgovernment, local authority or bank either before or after the commencement of the act' are exempt from the purview of this act. therefore section 7 does not exempt any transfer of the granted land made by the grantee in favour of any person other than the government, the central government, local authority or a bank either before or after the commencement of the act. in that view of the legal position the sale of the granted land made by the grantee in favour of the said giriyappa was outside the purview of section 7. as such the conclusion of the deputy commissioner that section 7 was attracted to the transaction is clearly erroneous in law. therefore, his impugned order at annexure-b is unsustainable.5. if the grant of the government land on dharkast to a member of the scheduled caste or scheduled tribe is after 1960 then the relevant rule imposing ban on its transfer would be sub-rule (4) of rule 43-g of the karnataka land revenue rules, 1960. this sub-rule (4) states:'43-g. grant of lands under the preceding rules shall be subject to the following conditions.- (1)..... (2)..... (3)..... (4) where the grant is made free of cost, or is made at a price which is less than the full market value, the grant shall be subject to the condition that the land shall not be alienated for a period of fifteen years from the date of grantee taking possession of the land, after the grant'. therefore, for applicability of sub-rule (4) of rule 43-g it is necessary for the enquiry authority to find if the grant of the land was made free of cost, or whether it was made at a price less than the full market value thereof. if neither of these legal requirements is satisfied in respect of a grant made during the relevant period then sub-rule (4) of rule 43-g will not get attracted to the transfer of the granted land and any condition prohibiting its transfer imposed on its grant would be a void condition. the order of the assistant commissioner produced as annexure-a shows that he failed to record his findings on the said legal requirements of rule 43-g(4) on the basis of the admissible material. in the absence of the definite findings on these material points his order does not sustain in law.6. for the reasons aforesaid, the petition is allowed. the order of the assistant commissioner at annexure-a dated 5-1-1990 passed in pt cl-cr 8 of 1989-90 and the order of respondent-deputy commissioner at annexure-d dated 11-7-1986 are quashed; and the matter is remitted to the assistant commissioner, shimoga with a direction to hold fresh enquiry and dispose it of by a fresh order on merits in the light of the observations made hereinabove and in accordance with law, and after giving opportunity to both parties to effectively participate in the enquiry proceeding.

Judgment:
ORDER

1. Heard.

2. It is not in dispute that the land in question measuring 2 acres bearing Sy. No. 29 of Belliganudu village, channagiri taluk, Shimoga District was the Government land that was granted to the petitioner's father Rangappa by the Government under dharkast and the saguvelli chit dated 30-3-1962 was issued to the grantee in respect thereof. The grant was made to him imposing the condition that the land shall not be transferred to any person for a period of 15 years. But the same was sold by him to one Giriyappa on 16-6-1966 under a registered sale deed. Thereafter, the said purchaser was stated to have borrowed the loan from certain Agricultural Co-operative Society mortgaging the said land. On his default in repayment of the loan, the said land was brought to sale by public auction by the said society and the same was purchased by respondent 3 herein, in that auction under the registered sale deed dated 10-12-1977.

3. The grantee Rangappa belonged to Scheduled Caste. After his death his petitioner son made an application before the Assistant Commissioner praying to restore the said land to him since the same was alienated by his father in violation of the prohibition clause. On that application an enquiry was held by the Assistant Commissioner and the order at Annexure-A dated 5-1-1990 was passed by him ordering eviction of respondent 3 from the land for the purpose of restoration thereof to the former. That order was challenged by respondent 3 in appeal before the Deputy Commissioner who then passed his order at Annexure-D dated 11-5-1996 allowing the appeal and setting aside the Assistant Commissioner's order on the ground that the said land was mortgaged by the earlier purchaser Giriyappa to a Co-operative Society, and their mortgage was exempt from applicability of the Act by virtue of Section 7 thereof.

4. Petitioner has challenged the legality thereof in this writ petition and has prayed to quash the same on the ground that the same is illegal.

Section 7 of the Act reads:

'7. Exemption.--Nothing in this Act shall apply to the transfer of granted lands in favour of the Government, the Central Government, a local authority or a bank either before or after the commencement of this Act'.

It becomes manifest from a plain reading of this provision, that all transfers of the granted lands made 'in favour of Government, CentralGovernment, local authority or bank either before or after the commencement of the Act' are exempt from the purview of this Act. Therefore Section 7 does not exempt any transfer of the granted land made by the grantee in favour of any person other than the Government, the Central Government, local authority or a bank either before or after the commencement of the Act. In that view of the legal position the sale of the granted land made by the grantee in favour of the said Giriyappa was outside the purview of Section 7. As such the conclusion of the Deputy Commissioner that Section 7 was attracted to the transaction is clearly erroneous in law. Therefore, his impugned order at Annexure-B is unsustainable.

5. If the grant of the Government land on Dharkast to a member of the Scheduled Caste or Scheduled Tribe is after 1960 then the relevant rule imposing ban on its transfer would be sub-rule (4) of Rule 43-G of the Karnataka Land Revenue Rules, 1960. This sub-rule (4) states:

'43-G. Grant of lands under the preceding rules shall be subject to the following conditions.-

(1).....

(2).....

(3).....

(4) Where the grant is made free of cost, or is made at a price which is less than the full market value, the grant shall be subject to the condition that the land shall not be alienated for a period of fifteen years from the date of grantee taking possession of the land, after the grant'.

Therefore, for applicability of sub-rule (4) of Rule 43-G it is necessary for the enquiry authority to find if the grant of the land was made free of cost, or whether it was made at a price less than the full market value thereof. If neither of these legal requirements is satisfied in respect of a grant made during the relevant period then sub-rule (4) of Rule 43-G will not get attracted to the transfer of the granted land and any condition prohibiting its transfer imposed on its grant would be a void condition. The order of the Assistant Commissioner produced as Annexure-A shows that he failed to record his findings on the said legal requirements of Rule 43-G(4) on the basis of the admissible material. In the absence of the definite findings on these material points his order does not sustain in law.

6. For the reasons aforesaid, the petition is allowed. The order of the Assistant Commissioner at Annexure-A dated 5-1-1990 passed in Pt CL-CR 8 of 1989-90 and the order of respondent-Deputy Commissioner at Annexure-D dated 11-7-1986 are quashed; and the matter is remitted to the Assistant Commissioner, Shimoga with a direction to hold fresh enquiry and dispose it of by a fresh order on merits in the light of the observations made hereinabove and in accordance with law, and after giving opportunity to both parties to effectively participate in the enquiry proceeding.