Mohankumar, Bangalore Vs. the Special Deputy Commissioner, Bangalore District, Bangalore and Others - Court Judgment

Excerpt:
constitution of india - articles 226 and 227 – civil procedure code – sections 100, 151 and rule 23 order 41 and rule 24 order 41 - mysore land revenue code - section 233 - karnataka scheduled caste and scheduled tribe [prohibition of transfer of certain lands] act, 1978 –sections 5 and 79 - mysore land revenue rules - rule 43 - writ petitions are a typical illustration as to how the purpose or intent of social welfare legislation can be effectually thwarted by obstructing property owners who have acquired interest in the meanwhile, for sustaining their possession and ownership of lands-in spite of social welfare legislation enacted by the legislature and if not totally avoided, ultimately inevitable at least to prolong and postpone the inevitable event for as long a.....(prayer: these petitions are filed under articles 226 and 227 of the constitution of india, praying to quash the order passed by the r1, dt.26.12.08, passed in no.sc.st(a)10/05-06 and no.sc.st(a)12/05-06 as per ann-c and further be pleased to confirm the order passed by the asst. commissioner dt.4.1.2005 in no.k.sc.st (s) 77 and 78/1980-81 and etc. misc.w.12609/2009 filed under section 151 of opc praying to vacate the order of stay dated 24.2.2009.) 1. these writ petitions are a typical illustration as to how the purpose or intent of social welfare legislation can be effectually thwarted by obstructing property owners who have acquired interest in the meanwhile, for sustaining their possession and ownership of lands-in spite of social welfare legislation enacted by the legislature and if.....

Judgment:

(Prayer: These petitions are filed under Articles 226 and 227 of the Constitution of India, praying to quash the order passed by the R1, dt.26.12.08, passed in No.SC.ST(a)10/05-06 and No.SC.ST(A)12/05-06 as per Ann-C and further be pleased to confirm the order passed by the Asst. Commissioner dt.4.1.2005 in No.K.SC.ST (S) 77 and 78/1980-81 and etc.

Misc.W.12609/2009 filed under Section 151 of OPC praying to vacate the order of stay dated 24.2.2009.)

1. These writ petitions are a typical illustration as to how the purpose or intent of social welfare legislation can be effectually thwarted by obstructing property owners who have acquired interest in the meanwhile, for sustaining their possession and ownership of lands-in spite of social welfare legislation enacted by the legislature and if not totally avoided, ultimately inevitable at least to prolong and postpone the inevitable event for as long a period as is possible, so that their continued possession and enjoyment of subject land is retained for as long a period as possible!

2. While on can take a broad and liberal view of such tendency of the part of the persons who might have bona fide acquired agricultural lands on payment of valuable considerations and might have thereafter effected considerable improvement in such lands and could have even got lands converted to non-agricultural purposes etc., there still remains a question mark on their bonafides as before acquiring any immovable property involving investment of large sums, it is expected that the purchaser will ascertain the vendors having a proper transferable right, title and interest in the subject land and that there is absolutely no impediment in law for the purchaser acquiring a valid and good title to the subject property under the sale transaction and anything short of this and more so if persons rush to acquire or purchase lands which had been originally owned by the State and had been granted in favour of persons belonging to depressed classes or scheduled caste and schedule tribe with the main objective of providing them a source of livelihood as they are themselves incapable of purchasing such lands and have never inherited any such lands as their forefathers also were not in any better position than the dire circumstances under which the grantees of such lands had lived and any person acquiring whether for valuable consideration or otherwise, a land granted in favour of a person belonging to scheduled caste and scheduled tribe community has to be attributed with lack of bona fides, for claiming a valid, good title by means of such acquisition or purchase.

3. While the legal status of such purchasers prior to the legislature enacting the Karnataka Scheduled Caste and Scheduled Tribe [Prohibition of Transfer of Certain Lands] Act, 1978 [for short ‘the Act’], was perhaps a little comfortable and there were chances of such lands being legally or otherwise retained by the purchasers under certain circumstances on and after the provisions of the Karnataka Act No.2 of 1979 came into force with effect from 1.1.1979, such possibilities of the purchasers retaining granted lands have become rather bleak and rare instances and in such a scenario no wonder purchasers don’t spare any effort, do not leave any stone unturned at least to retain an enjoy the land for as long a period as is possible.

4. While as observed above, it is all but a natural human tendency to cling on to one’s possession and we are loath to part with what we are possessed with, the unfortunate victims and sufferers in this effort or endeavour on the part of the purchasers to retain the purchased land for as long a period as is possible are only either the grantees or their legal heirs, who perhaps with a ray of hope having been kindled in them, for regaining or repossessing the land which had been granted to them once earlier by the State Government and which had been sold or transacted in violation of the terms of the grant and the possibility of such repossession having been provided under the provisions of the Act, seek the aid of the Assistant Commissioner in terms of section 5 of the Act, but whether or not they get the land and are able to repossess they have to face the ordeal of an unending legal battle with a powerful affluent purchaser sparing no effort and trick in the trade, even as is possible before the courts and in the legal system, a mute, silent sufferer and who may perhaps even lost the battle one day or the other by the sheer tiredness and inability to keep fighting litigation. A piece of legislation which was meant to be a boon and a gift to such persons belonging to scheduled caste and scheduled tribe communities who had earlier parted with the granted land, many a times in violation of the conditions of the grant and their exploitation having continued unabated even after the Act coming into force, as there are good number of willing voluntary buyers to buy such lands with or without permission of the State Government, the enabling provisions of the Act has only resulted in more a curse and an ordeal to them than of any real benefit, if one should look at the length of such litigation and the manner in which the matter keeps getting tossed up between the Assistant Commissioner, Deputy Commissioner, High Court and even the Supreme Court and many a times, one more round of fresh enquiry and litigation starting before the Assistant Commissioner.

5. The length of litigation in this country as legendary and can outlive generations. A person who had initiated an action may not live to see the result and many a times a result may not be available even in the next generation. Such is the curse on the legal system in this country and no wonder citizens and people are wary of approaching courts for relief, what with the duration alone being not sufficient to discourage litigants from approaching courts for relief, the uncertainties of the decision making process, the end results, many a times, the result getting reversed at a successive higher forum, are all vagaries of litigation in this country adding to the misery and turmoil of a litigant, apart from the costs!

6. The story in the present writ petition is not much different, but the victims are persons who are arrayed as respondents 3, 4 and 11[a] to 11[d] in these petitions, who had claimed to be legal heirs of two persons one Venkatappa and another Pedda Bovi, who had been granted an extent of land measuring 4 acres each in Block Nos.26/1 and 26/2 of Nagadevanahalli, Kengeri Hobli, Bangalore South Taluk, in terms of the proceedings of the revenue authorities evidenced initially by a saguvali chit dated 31.10.1961.

7. The Karnataka Scheduled Castes and Scheduled Tribes [Prohibition of Transfer of Certain Lands] Act, 1978 (for shirt ‘the Act’)-a piece of social welfare legislation meant to protect the interest of persons belonging to scheduled caste and scheduled tribe community, who have suffered social injustice since ages though has a very laudable purpose and object, has more often than not, resulted in heaping further misery and hardship on such persons rather than providing them any succor which if at all comes after a very long length of time consumed in the litigation process and may not be in the first generation, but in the second or third generation.

8. It appears the subject lands granted in favour of two persons who are children of brothers by name Rama Bovi and Thulasa Bovi, had sold away the four acres of land granted in favour of each of them as persons belonging to scheduled caste community in favour of eighth respondent-Deinesh Kumar, son of Jai Jairam, perhaps a businessman in terms of two sale deeds registered as document No.1304/1976-77 and 1305/1976-77 at the office of the Sub-Registrar, Bangalore South Taluk, Bangalore, each for sale consideration of `36,400/-.

9. It appears the purchaser Dinesh Kumar had raised loans on the security of these lands from Central Bank of India, Bombay Branch and the Bank had brought the property for auction sale due to non payment by the borrower and in the court auction sale for enforcing the mortgage decree, the writ petitioner purchased the lands for a sum of `16,60,000/- in terms of the auction sale. That is how the writ petitioner has claimed and evinced interest in the subject lands and is fighting litigation to retain the lands for himself.

10. The grant by the revenue official the Tahsildar has its own story to tell even subsequent to the grant as the grant was in favour of as many as five persons belonging to scheduled caste community and each being granted an extent of 4 acres of land in old Sy.No.26 and being renumbered by giving separate survey numbers for an extent of 2 acres each and insofar as lands which are subject matter of these writ petitions are concerned, they have been assigned Sy.Nos.106, 107, 110 and 111 measuring an extent of 2 acres each.

11. But there were complaints by the residents of the village that ineligible persons, persons who were not eligible for such grant in terms of the provisions of Rule 43 of the Mysore Land Revenue Rules framed under Section 233 of the Mysore Land Revenue Code as it existed and notified in the official Notification No.R.5536-56-L.R. 266-55-8, dated 6.7.1955 and RC-16328-L.R.133-54-14 dated 12-18^th January 1956, had pointed out that many grantees were not even residents of the village, as one of the eligibility criteria for granting government land in favour of the scheduled caste and scheduled tribe persons was that they should be persons residing in the very village where the land is located.

12. It appears that an enquiry was held in this regard and on report submitted by the concerned revenue inspector to the Tahsildar etc., it was found that except for Venkatappa and Pedda Bovi the other three persons in whose favour grant of an extent of four acres had been made were not the residents and therefore, grant in favour of such persons were cancelled.

13. Such persons had taken up the matter to the Mysore Revenue Appellate Tribunal, Bangalore, in Appeal Nos.584, 1881 and 1887 of 1967-1968 respectively and as per its order dated 17.1.1969 the tribunal, appears to have remanded the matter to the Deputy Commissioner, Bangalore District, for further enquiry and to pass orders afresh as to whether the original grants should be sustained or otherwise depending on the outcome of the enquiry etc.

14. On the matter going back to the Deputy Commissioner, they were examined together in case No.LND.REV.640.1968-1969 and was ordered on 2.8.1969 a copy of this order being produced as Annexure-R1 to the statement of objections filed on behalf of respondents 11(a) to (d) and the significance of this order is that some reference is made with regard to the lands being put in possession of the grantees and the point of time, when they were put in possession.

15. Be that as it may, what is obvious from this order is that the grant in favour of Venkatappa S/o Rama Bovi and Pedda Bovi S/o Thulasa Bovi had been sustained and if at all a further enquiry was required to be made, it was only in respect of all the other three persons who were common grantees under the same darkasth proceedings and both the learned counsel for the petitioner and learned counsel for the respondents have relied upon the findings and observations made in this order to assert that possession of the subject lands was with the grantees ever since the date of grant i.e., 31.10.1961 as asserted by the learned counsel for the petitioner and it was only handing over of possession that happened during 1963-1964 as asserted by the learned counsel for respondents 3, 4, 11 (a) to (d). One another aspect of this order is the factum of mentioning in this order that the Tahsildar, Bangalore South Taluk was directed to get upset price and the malki value of the land, got credited to the treasury immediately as, saguvali chit concerning these grants had already been issued in favour of appellants in the appeal and that they had been put in possession of the lands and had remained so from 1963-64 onwards and therefore as they remained possession, the grant was being sustained even in favour of the three appellants in the appeal subject to payment of upset price and malki value etc. While a detailed perusal of this order does not reveal that the predecessors of respondents 3, 4 and 11 (a) to (d) grantees had been put in possession of the subject lands on the date of issue of saguvali chit, it is only obvious that it could have been later and at any time not earlier than 1963-64 as is observed by the Deputy Commissioner, Bangalore District, as the order recites that the grantees have already been issued saguvali chits and that they have been in possession of the lands continuously from 1963-64 onwards. The word ‘Grantees’ includes the predecessors of these respondents and if there is intrinsic evidence in this order, it is only to infer that even the predecessors of respondents were in possession form 1963-64 and not at any point earlier in time. But the order by itself reveals that the subject lands form part of an extent of 55 acres of land in Sy.No.26 of the village which had been released from the Forest Department for being utilized for cultivation as community lands for the Bovi community or for co-operative farming and on this basis the applicants had sought for granting an extent of 55 acres of land in their favour in terms of their petitions made on 8.7.1960 and 22.7.1960 to the Revenue Minister, Government of Mysore and that is the origin of the proceedings under the Mysore Land Revenue Code, having been initiated and records being built up for grant of lands. The petition also indicated that while the applicant members of the Bovi community were residing in the area, they did not have sufficient lands to sustain their livelihood by cultivation and therefore had sought for granting an extent of 55 acres of land which had been released by the Forest Department in favour of the Revenue Department for cultivation and the grants being part of this survey number 26 and from out of the earlier forest land which was necessarily to be brought under cultivation by suitably preparing the land and the land being converted to alienated lands and subject to resumption etc., by the revenue authorities.

16. It appears that the subject land though is claimed to be a grant of the year 31.10.1961 saguvali chit being dated 1.11.1961 and as per the proceedings of the Tahsildar, the Tahsildar being only a person acting on behalf of the Deputy Commissioner for grant of such lands, it is not a grant in the eye of law, unless it has elicited the approval of the Government Official Memorandum dated 11.3.1964 in No.LND.SRL.224/62-63 in accordance with the powers conferred as per G.O.No.RD 113/61 dated 18.5.1962.

17. It is the assertion of Sri. Manjunath, learned counsel appearing for respondents 3 and 4 that it is only thereafter the lands were marked, divided into blocks of 2 or 4 acres assigning survey numbers and the grantees were issued with saguvali chits dated 20.2.1970, a copy of which is also produced as Annexure R2 to the statement of objections filed by respondents 11 (a) to (d) and at any rate is found at page No.77 of the record of the proceedings of the Deputy Commissioner in appeal under Section 5A of the PTCL Act.

18. A reference to this itself has some significance as considerable arguments are addressed at the bar on the question as to whether the condition of non-alienation for a period of 15 years from the date of taking of possession of the land by the grantees is attracted at all. The learned counsel for the petitioner contends that it is not even attracted as the subject land was one sold by fixing upset price and even if attracted on the date of the sale transaction i.e., 5.11.1976 the period of 15 years from the date of issue of saguvali chit dated 31.10.1961 having elapsed and with the assertion that the grantees have already been in possession and continue to remain in possession and therefore, the date of grant can never be taken to be later than 1961 i.e. earlier than the date of issue of saguvali chit.

19. To complete the narration and sequence of events while such developments were taking place on the revenue side the grantees who became wise about the provisions of the Act on and after 1.1.1979, primarily invoked the provisions of Section 5 of the Act by petitioning the Asst. Commissioner in terms of their application No.77 and 78/1980-81, proceedings were initiated before the Asst. Commissioner way back in the year 1980 but has refused to see the end and is the subject matter of this order again in a petition under Article 227 jurisdiction of this Court.

20. The application found favour with the Asst. Commissioner and in terms of the order dated 2.11.1995 the Asst. Commissioner, Bangalore Sub-Division, allowed the application, voided the sale transaction, directed resumption of the land to the State and to restore it in favour of the grantee. Normally one or the other grantees having died the legal heirs of such persons have come on record and have been fighting this unending litigation.

21. The purchaser promptly filed appeal before the Special Deputy Commissioner, but the Special Deputy Commissioner found no occasion to vary the order of the Asst. Commissioner and therefore, dismissed the appeals in terms of his order in appeal No.SC/ST (A) 8: 95-96 dated 29.11.1996. Petitioner approached this Court in W.P.Nos.33089 and 33121/1996 and this Court allowed the writ petitions in terms of the order dated 14.08.1997, remanded the matter to the file of the Asst. Commissioner to decide the matter afresh according to law etc. it is to be noticed from the order of this Court (copy produced as Annexure-A) that while this Court clarified the legal position regarding the period of non-alienation to be 15 years from the date of taking of possession in terms of Rule 43-G(4) of the Karnataka Land Revenue Rules framed under Karnataka Land Revenue Code, 1988, it was also emphasized that the period runs from the date of taking possession of the land and not from the date of grant or issue of saguvali chit, but the factual date of taking possession being within the knowledge of the grantee, it was for him to plead and prove the date if anything to the contrary is operated and therefore, remanded the matter to the Asst. Commissioner for a fresh enquiry to ascertain as to whether there was violation of the terms of the grant by the land being transferred within a period of 15 years from the date of grantee taking possession of the lands.

22. Courts and Judges trained and brought up in an atmosphere prevailing in the legal system, which is a legacy from our past rulers which is the English Legal System and which was essentially an adversary legal system, tends to view and decide cases only based on legal principles as had evolved under the English Legal System and of course we keep applying the laws of Civil Procedure Code and the Evidence Act, which again the legislations of vintage value, designed to suit the needs and requirements of the Rulers when the common people were sought to be kept under subjugation and are not allowed full freedom by the rulers of the country to perpetuate their rule and the British empire refuse to change easily and as a matter of course apply and adopt such legal principles even without a second thought as to whether such legal principles can in any way be invoked for the purpose of examining the matters while exercising the constitutional jurisdiction of judicial review of administrative action or even while exercising the jurisdiction or the power of superintendence of the High Court over all courts and tribunals within the territory of the State over which the High Court has jurisdiction and as a matter of course employing such English legal principles, many a times without any awareness of the legislative provisions and their purpose without much nexus to the object and purpose of such legislation and being steeped in conventional traditional methods and perceptions and our Courts by and large being, what can be described as “status quo” courts to ensure that one who has some thing is sustained and is protected to retain it from others; judges who think in a very conventional and traditional way and by an large who always have sympathy to a person who perhaps has paid a price for acquiring the land, if should be deprived of the property purchased by investing hard earned money; being sympathetic to the acts of such person, unmindful of the purpose and object of the legislation and tending to treat writ jurisdiction as a conventional appellate jurisdiction evolved in the context of adversary litigation, originating through a suit before the Civil Court gravitating to the first appeal and a second appeal and a further appeal to the Supreme Court in special leave jurisdiction either under the statutory power or as conferred in our constitution, the ultimate product is not necessarily as it should be and as envisaged under the legislative scheme.

23. Remand orders are passed by this Court as a matter of course even while exercising writ jurisdiction as though it is not any different than the exercise of appellate jurisdiction, as though the matter warrants a further scrutiny and even by adducing evidence of the parties before the original authority! A remand order is warranted and justified only for the purpose of getting fresh evidence which is inevitable for a satisfactory disposal of a case and which had not come on record before the Courts in the first round of litigation but has reached the appeal stage. Otherwise, there is no scope for a remand order as the powers of a first appellate court even in the Code of Civil Procedure being co-extensive with the original court remand order being as envisaged under Rule 23 of Order 41 and not in a situation mentioned in Rule 24 of Order 41 of CPC reading as under:-

“Order 41

Rule 23. Remand of case by Appellate Courts:-Where the court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, the Appellate Court may, if it thinks fit, by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded, and shall send a copy of its judgment and order to the court from whose decree the appeal is preferred, with directions to re-admit the suit under its original number in the register of civil suits, and proceed to determine the suit; and the evidence (if any) recorded during the original trial shall, subject to all just exceptions, be evidence during the trial after remand.

Rule 24. Where evidence on record sufficient, Appellate Court may determine case finally. Where the evidence upon the record is sufficient to enable the Appellate Court to pronounce judgment, the Appellate Court may, after resettling the issues, if necessary, finally determine the suit, notwithstanding that the judgment of the court from whose decree the appeal is preferred has proceeded wholly upon some ground other than that on which the Appellate Court proceeds.”

24. When a matter arising under the Provisions of the Act reaches the High Court in a petitioner under Article 227 of the Constitution of India, it will have already been examined by two statutory authorities-the Asst. Commissioner acting as the original authority and the Deputy Commissioner acting as the first appellate authority and it is thereafter the matter reaches the High Court. If a parallel is to be drawn with the Code of Civil Procedure, it will be akin to a Second Appeal under Section 100 of CPC. Even in a matter originating in the form of a suit, the scope of examination by the High Court in the Second Appeal is confined to substantial questions of law as provided under Section 100 reading as under:-

“100. Second appeal

(1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law.

(2) An appeal may lie under this section from an appellate decree passed ex parte.

(3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal.

(4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question.

(5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question;

Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question.”

If such is the scheme of litigation and the scope of a second appeal under Section 100 of CPC is so regulated and restricted, the scope of examination by the High Court in a petition under Article 227 is obviously far less as the High Court does not exercise appellate jurisdiction under Article 227 of the Constitution of India, but on the other hand, this jurisdiction is loosely and liberally exercised by the High Court in passing remand orders as a matter of course, which is an exception even while exercising regular appellate jurisdiction, prolonging the length of litigation adding to the travails and miseries of persons who are actually sought to be conferred with benefits under the Act!

25. In this case, while the observation as found in this order that the burden is upon the grantee or person claiming under him to assert and prove the date of taking of possession, this is an observation in disregard or in ignorance of the statutory provisions of Section 5 of the PTCL Act, particularly, Section 5(3) of the Act reading as under:-

“5(3) For the purpose of this section, where any granted land is in the possession of a person, other than the original grantee or his legal heir, it shall be presumed, until the contrary is proved, that such person has acquired the land by a transfer which is null and void under the provisions of sub-section (1) of section 4.”

26. Proceedings before the Asst. Commissioner under Section 5 of the Act itself is in the nature of an enquiry and even suo motu jurisdiction is conferred on the Asst. Commissioner and is not an adversary litigation between the grantee or his legal heirs and the purchasers, who are presently in possession of a granted land. Conventional concepts and principles of civil law and common law fail and are not applicable in proceedings which are statutorily regulated and the proceedings are one to be conducted strictly in accordance with the statutory provisions, more so, when the statute is for a specific special purpose and as in this case is a piece of social welfare legislation to confer a benefit and to provide some solace to persons belonging to schedule caste and scheduled tribe community. The examination is always from the angle of sustaining the grant in favour of such persons, which is the intention and purpose of any grant in favour of persons belonging to these communities and when the law itself invalidates the sale transaction under certain circumstances, there is no further scope for the authorities or even for this Court while exercising jurisdiction under Articles 226 and 227 of the Constitution of India to act at variance with the statutory provisions.

27. What with the High Court directing the authorities to examine the matter in a particular manner and when the matter went back to the Asst. Commissioner, the Asst. Commissioner in terms of the order at Annexure-B dated 24.1.2004 dropping the proceedings under Section 5 of the Act though as a matter of fact, found that the land being one granted in favour of persons belonging to Bovi community, a community notified as the scheduled caste community but on the premise that the subject land had been granted on fixing an upset prince of `75/- per acre as per the order dated 7/11.3.1964 by the Deputy Commissioner and with the revenue entries having been mutated in the name of the grantees from the year 1963-64 subject land was in the possession and cultivation of the grantees from 1963-64, though the land was in fact alienated within a period of 15 years from the date of grantees being put in possession but as the land had been granted on fixing an upset price, opined that the condition of non-alienation is not at all applicable and therefore, concluded that the sale transaction of the year 1976 cannot be found fault with, to be in contravention of the conditions of the grant on the premise that under Rule 43-G(4) of the Rules and as this rule is interpreted by this Court in the case of A.NARASIMHAMURTHY Vs. STATE OF KARNATAKA AND OTHERS reported in 2001(2) KLJ 313, the condition of non-alienation for the period being not applicable, if such land is granted at full market or upset price, the Asst. Commissioner had no jurisdiction to annual the purchase of such land and to restore the land to the grantee as the sale cannot be characterized as one in violation of any terms of the grant as the statutory provisions do not enable a condition being imposed in a situation where the land was sold for full market value or upset price.

28. It was the turn of the grantee or the legal heirs to appeal to the Special Deputy Commissioner (copy at Annexure-C) this time and the Special Deputy Commissioner by an elaborate order running to as many as 7 pages containing the actual order, allowed the appeal taking the view that the Asst. Commissioner was wrong in dropping the proceedings in respect of an extent of 8 acres of land which had been granted in favour of Venkatappa and Pedda Bovi is that the fixation of un upset price assuming that it was so did not reflect the full market value that the decision of the Supreme Court in the case of SIDDEGOWDA VS. ASST. COMMISSIONER AND OTHERS reported in AIR 2003 SC 1290 squarely applies to the present situation that the first or initial alienation being within 15 years, even as found by the Asst. Commissioner, the condition of non-alienation within a period of 15 years inevitably operated even in terms of Rule 43-G(4) of the Rules as it was never made out that the upset price was the full market price or the equivalent value of the land on the date of grant as observed by the Supreme Court and therefore, allowed both appeals and directed resumption of the land to the State and restoration to the legal heirs of the grantee.

29. It is this order of the Special Deputy Commissioner (copy at Annexure-C) that is called in question in this writ petition.

30. The matter has been heard at length and on several days, though the learned counsel for respondents 3 and 4 have filed Misc.W.12609/2009 for vacating the interim order and prays for passing orders on this application, instead the matter is taken up for final disposal itself and has been heard for disposal.

31. I have heard Sri. T.S. Amar Kumar, learned counsel for the petitioner assisted by Sri. Prashant, colleague of Sri. T.S. Amarkumar appearing for the petitioner at good length and Sri. R. Omkumar, learned AGA appearing for the State-the Statutory Authorities supporting the order of the Deputy Commissioner by pointing out relevant statutory provisions and the decision of the Supreme Court in Sidde Gowda’s case cited supra and Sri. Manjunath and Sri. Dhananjaya, learned counsel for respondents 3 and 4 and Sri. P.M. Narayanaswamy, learned counsel who has made submissions for respondents 11(a) to (d).

32. With there being no representation for other respondents and the contest being essentially between the petitioner and respondents 3, 4 and 11(a) to (d) and they being represented by learned counsel and with learned AGA also assisting the Court, the matter has been heard to everybody’s satisfaction.

33. I have also perused the petition pleadings which are quite elaborate, the statement of objections filed on behalf of the contesting respondents and for a good measure perused the record of the Asst. Commissioner and the Deputy Commissioner, which has been made available by the learned AGA.

34. Mr. Amar Kumar, learned counsel for the petitioner has raised three contentions. It is firstly urged that in terms of Rule 43-G(4) of the Rules there was no condition of non-alienation that could have been imposed on the grantee as it is subsequently found that the grant of land was subject to fixation of upset price at Rs.75/- per acre and therefore, it should be taken to be the full market value and for such purpose has drawn my attention to the provisions of Rule 43-G and also the definition of “upset price” as is found in Mysore Land Revenue Code Rules 43(1)(3). The method of fixing the upset price reads as under:-

“43(1)(3) The “Upset Price” shall not be arbitrarily fixed but shall represent the actual market value of the land as nearly as it can be ascertained by local enquiries and by the examination of records of sales of similar lands in the neighbourhood, and if necessary, of the registration statistics relating to them.”

In the procedure to be followed for fixing the upset price there is specific mention of the upset price attracted and realized in terms of the order of the Deputy Commissioner dated 2.8.1969 (copy produced as Annexure-R1 to the statement of objections) it should be necessarily inferred that no conditions could have been imposed on the grantee, but notwithstanding the saguvali chit was issued and that the grant was subject to the condition of non-alienation for a period of 15 years as contained in it which is not a sustainable condition.

35. Mr. Amar Kumar has secondly contended that even assuming the period of 15 years of non-alienation is attracted for arguments sake, as the petitioner was not in possession of the land earlier and at any rate being put in possession and continued to be in possession from the date of issue of saguvali i.e., ever since 31.10.1961, the sale transaction being on 5.11.1976 after a lapse of 15 years from the date of grantee being put in possession the period of non-alienation even in terms of Rule 43-G(4) of the Rules having expired, the provisions of Section 79 of the Act are attracted. The third contention of course is with regard to the manner of disposal of the appeals by the Deputy Commissioner pointing out that the Deputy Commissioner has not applied his mind to the facts of each appeal even while disposing the appeal at the instance of the legal heirs of Venkatappa has passed orders on the subject matter of appeal filed by Pedda Bovi, over-looking the fact that the appeal by Pedda Bovi having been filed in the year 2005, while this remained pending on Board, purporting to have disposed of the same under the impugned order; that cannot be an order, which can bind the petitioner insofar as the subject matter of appeal No.31/2005 filed by Pedda Bovi, and that to the best of knowledge of the petitioner, appeal No.31/2005 continue to remain on the Board of the Deputy Commissioner and therefore, the order at any rate to this extent suffers from this infirmity and the order cannot in any way affect the interest of the petitioner-purchaser insofar as it relates to the extent of land purchased from Pedda Bovi.

36. Such arguments are sought to be supported by not only drawing my attention to the relevant statutory provisions and the order of the Deputy Commissioner (Annexure R1) to the statement of objections filed by respondents 11 (a) to (d) and also the statement of objections filed to this petition on behalf of respondents 3 and 4 and 11 (a) to (d) to submit that the respondents themselves having admitted the factum of upset price having been fixed and they having paid the upset price as contended in the statement of objections of respondent Nos.3 and 4, the question as to whether the petitioner-purchaser had proved either the subject lands were granted in favour of the predecessor or these respondents also being one granted on fixing an upset price or on realizing the upset price and when the respondents themselves have made admission to this effect there was no burden on the petitioner to have proved such a factual event, assuming that the provisions of sub-Section (3) of Section 5 contained a presumption against the petitioner and rendered void the sale transaction of the year 1976.

37. On the other hand, the learned counsel for the respondents have very stoutly defended the order passed by the Deputy Commissioner. It is pointed out by drawing my attention to the statutory provisions of the Karnataka Land Revenue Rules as contained in Rules 43(G)(4) and 43(G)(1):

“43(1)(d) In the case of grant of land to persons who are poor belonging to the Scheduled castes and the Scheduled tribes, out of the upset price payable, two hundred rupees may be waived, the balance if any being payable in annual instalments not exceeding three.

43-G GRANT OF LANDS UNDER THE PRECEEDING RULES SHALL BE SUBJECT TO THE FOLLOWING CONDITOINS:-(1) In the case of grant of lands to applicants belonging to the Scheduled Castes and Scheduled Tribes, and to other applicants, who are unable to pay the occupancy price on account of poverty, the occupancy price may be waived up to rupees two hundred and the balance recovered in three annual instalments.

(2) In the cases of grant of land to applicants who are ex servicemen the occupancy price shall be waived up to the extend awarded by Government under the Military Concession Rules.

(3) In the case of grant of land free of occupancy price, the grant shall be subject to the condition that the grantee shall pay contribution or betterment levy in respect of the land and the value of trees standing in the land.

(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 the grantee taking possession of the land, after the grant.

Provided that such land may be alienated with the previous sanction of the Government and subject to such conditions as the Government may specify, if the Government is of the opinion that the circumstances of any case, it is just and reasonable to permit such alienation either for purposes of acquiring some other land or for any other purpose.

(a) the alienation of any land in favour of the State Government or Co-operative Society as security for loans obtained for improvement of the land or for buying cattle or agricultural implements for cultivation of the land, or alienation of any land in favour of the Indian Coffee Board as security for loans advanced by the Indian Coffee Board under the Coffee Development Plan;

(b) the leasing of any land by a person who is widow, a minor or who is subject to physical or mental disability or who is a serving member of the armed forces.

(5) the grantee shall cultivate the land personally.

(6) the land shall be brought under cultivation within two years from the date of the grantee taking possession of the land.

(7) the grant is liable to be terminated and the land resumed if any of the aforesaid conditions is not fulfilled, and on such resumption the land shall vest in Government free from all encumbrances.

Provided that no land shall be resumed under this clause except after giving an opportunity to the grantee or his successor in interest to show cause why the grant should not be terminated and the land resumed.”

to submit that the period of non-alienation of 15 years applies whenever there is a free grant or upset price being less than the full market value and in terms of Rules 43-G(1) lands granted in favour of a person belonging to scheduled casts and scheduled tribes the occupancy price up to Rs.200/- being waived and balance recovered in three monthly installments which is the statutory provision and there being no evidence at all for any payment made by the grantees on an upset price being fixed in respect of the land granted in their favour, the condition of 15 years alone operates and therefore, sale transaction is clearly void as found by the Deputy Commissioner.

38. In this regard it is pointed out that even assuming the upset price had been fixed, there is nothing on record to indicate that it was the full market price and on the other hand, the statement of objections does not even indicate as the whether land undisputedly is a granted land in favour of Venkatappa and Pedda Bovi. Initially Rs.200/- having been waived, if at all the balance Rs.100/- could have been collected only in installment and if there is nothing on record to indicate that any amount had been realized from Venkatappa and Pedda Bovi and the grant is only a free grant, it is asserted and it is with reference to the very order of the Deputy Commissioner to submit that possession was not taken at any time earlier, but only on and after 1963-64 and possibly even after 10 years as till then even the identification and demarcation of territories of the land had not been made and therefore, the date of taking of possession of the land on record even in terms of the order of the Deputy Commissioner is only to be in the year 1963 and 1964 and not earlier than 1970 and therefore, the 15 years non-alienation period having not elapsed, either from 1963-64 or 1970 as on the date of sale transaction, the sale transaction is caught in the vice of Section 4 of the Act and is to be inevitably voided.

39. Insofar as the third contention urged on behalf of the petitioner is concerned it is pointed out that there are 10 to 11 appeals relating to the grantees and as heirs of original grantee Venkatappa and Pedda Bovi and the parties being closely related to one another and the two appeals being in respect of the subject matter of 2 acres 2 guntas each in said survey number totally comprising of 8 acres and covered the lands that had been granted in favour of Venkatappa and Pedda Bovi, the mere non-mentioning of the property of appellants or even assuming the examination of the appeal filed by Pedda Bovi has not been considered in the appeal, cannot come in the way of the order being sustained for the simple reason that the Deputy Commissioner was required to examine the legality or otherwise of the order passed by the Asst. Commissioner, an order passed in common and against the legal heirs of Venkatappa and Pedda Bovi and all parties or his legal heirs being parties to the proceedings to STA 12/2005-2006, the disposal or non-disposal of appeal assuming they are separately filed, is only a mere formality and that cannot come in the way of the order being sustained and particularly, for this Court to disturb this order in the exercise of jurisdiction under Article 227 of the Constitution of India when the purpose and the object has been achieved under the impugned order and the result being that inevitably to resume the land to the State and restore it to the legal heirs of the grantee, a duty casts on the original authority Asst. Commissioner even suo motu does not make any difference if the appellate authority even in the absence of an appeal, and even if this is to be sustained, having achieved the same in the very appeals that were pending before him, no exception can be taken to that order in the writ jurisdiction is nothing harsh that it deserves to be dismissed with commensurate cost etc.

40. On the other hand, the present writ litigation which started way back in the year 1980 before the Asst. Commissioner is more than three decades old and still not seeing its end, is nothing short of an ordeal to the grantee and later to the legal heirs and is a mockery of our judicial and legal system and the benefit said to be conferred in favour of persons belonging to the scheduled caste community and in terms of grant order fails. The social legislative system is a paradox and an irony and in fact such purchasers are bound to have undergone the misery though the land in question acquired by the petitioners through the sale transaction, is void in terms of sub-section (3) section 5 when once the subject land is in the nature of a granted land and there being absolutely no dispute on this aspect of the matter and even when the Asst. Commissioner in the second round also held that the sale transaction was one which took place within the prohibitory period of 15 years from the date of grantees being put in possession, the order passed by the Asst. Commissioner to hold that the condition of non-alienation does not apply as subject land is a grant on fixing upset price is as is evident from fact and law. There is nothing on record to indicate that the grantees Venkatappa or Pedda Bovi had paid any amount by way of upset price and though the learned counsel for the petitioner has drawn considerable support from the statement of objections filed on behalf of respondents 3 and 4 it is of little consequence or importance, as I have observed in the earlier part, the present litigation is in the nature of adversary and to contend that the respondents are estopped from arguing to the contrary in the wake of their admission, is only again calling in aid as pre-developed in the conventional English Legal System.

41. But the real issue here is that the proceedings are statutory in nature, there is a mandatory duty on the Asst. Commissioner to even voluntarily examine the records and wherever there are violations of the terms of the grant and transfer of land has taken place, to invalidate the same and the land resumed to the State and restored to the original grantee is the mandate of law. It is not that any burden is caste on the grantee nor any responsibility is caste on their legal heirs or that the terms of the grant being steeper we can observe that the grantee or legal heir has not proved a particular grant or a condition of the grant or any factual assertion being oblivious and un-mindful of the presumption provided in law in terms of the provisions of sub-section (3) of Section 5 of the PTCL Act when once the subject land is “granted land”.

42. There is nothing on record to indicate that the Deputy Commissioner has committed some procedural irregularities in the disposal of the appeal etc. I am of the clear considered view that it makes little difference to the ultimate outcome and the mandate of law has been fulfilled in terms of the impugned order.

43. It was the duty of the statutory authority to have ensured what can happen under the order passed by the Deputy Commissioner in exercise of his power under Section 36 of the Karnataka Land Revenue Act, 1964, in July 2008 was at the very first instance and of course subject to granting an opportunity to the purchaser to defend their purchases or to part possession in accordance with law, but subject to mandate of law; that the provisions are given effect to in a expeditious manner and without any delay, but unfortunately it has not happened during the last 30 years and the only outcome is misery and ordeal heaped on the grantees or their legal heirs and if such is the outcome of legal judicial proceedings the purpose of legislation fails and it is for the courts to ensure that the object and purpose of a legislative scheme is achieved and as a result which can mock at law and render the social welfare legislation redundant. Such cannot be the manner of functioning of the courts and courts are required to interpret in consonance with the purpose and object with which law has been enacted and not to Act or function independent of the purpose and object of the Act. The only manner in which it is to be examined is from the background of the circumstances and the purpose for which the law has been enacted and the social motive which is sought to be implemented the present event undoubtedly to be precise is that it has been in favour of persons belonging to scheduled caste and scheduled tribe and therefore, has to sustain at any cost as it is well known that their innocence and gullibility is taken advantage of.

44. I find that no interference is called for with the order of the Deputy Commissioner, the object of which is really achieved by the authorities under the Act or assuming that they cannot be unnecessarily enabled by this Court or justified by this Court in invalidating the sale transaction and the misery undergone by the respondents or the legal heirs of the original grantee be put an end to. I am quite conscious and aware of this responsibility cast on the courts and public authorities.

45. It is noticed and observed that this Court while exercising jurisdiction under Article 227 of the Constitution of India, if at all can sit in the armchair of the statutory authority if is warranted and exercise all its power available under the situation or under any statute. The examination is only within the statutory provision and on such examination the impugned order passed by the Deputy Commissioner holds its ground and it cannot be disturbed and the writ petition is therefore, dismissed imposing exemplary cost of Rs.50,000/- on the petitioners, to be paid to respondents 3, 4 and respondents 11 (a) to (d) for the ordeal that respondents have undergone as there is no better way to compensate such inevitable length and delay, it can be only by providing some monetary relief and therefore the cost is quantified at Rs.50,000/-. Cost to be deposited within four weeks from today before this court by the petitioner, failing which the registry is directed to issue certificate in favour of the respondents, to realize this amount as though it is a decree passed by the civil court.

46. Rule discharged.

47. It is inevitable that Misc.W.12609/2009 for vacating should be ordered. Interim order is vacated.