Chinde
Gowda Vs. Puttamma [2007] Insc 1293 (14 December 2007)
Dr.
Arijit Pasayat & P. Sathasivam Dr. Arijit Pasayat, J.
1.
Heard learned counsel for the parties.
2.
Challenge in this appeal is to the order passed by a Division Bench of the
Karnataka High Court dismissing the writ appeal filed under Section 4 of the
Karnataka High Court Act (in short the 'High Court Act'). Challenge in the writ
appeal was to the order passed by a learned Single Judge in Writ Petition No.
180897/95 dated 9.9.1998.
3.
Factual background in a nutshell is as follows:- The Government land measuring
30 guntas in extent in Sy. No.96/12 of Heggur village, T.N.Pura Taluk was
originally granted temporarily to R-1's husband Lingaiah on 26.9.1959 for upset
price at the rate of Rs. 500/- per acre allowing him to pay the same within the
specified time and subject to the condition that on payment thereof the grant
shall be confirmed in his favour. It transpires from the impugned orders of the
authorities below that because of poverty the grantee could not make payment of
the upset price in time and the same was, therefore, made payable in three
equal instalments by order dated 24.8.1961. On payment of the said price, the
temporary grant of the land was confirmed in his favour by order dated
10.10.1962 imposing the condition that the same shall not be alienated by him
for a period of 15 years. In violation of this condition the said land was sold
by the grantee on 16.2.1965 to one Manche Gowda whose children, in turn, sold
the same to appellant on 22.5.1972.
After
the Scheduled Caste and Scheduled Tribe (Prohibition of Transfer of Certain
Lands Act (the Act in short) came into force, R-1 made his application to
Respondent No. 2 Asst. Commissioner seeking resumption of the said land under
Section 5 of the Act on the ground that the same had been alienated by her late
husband in breach of the said non- alienation condition. On enquiry, the order
dated 19.7.1993 was passed by the Asst. Commissioner holding the said sale null
and void and directing appellants eviction from the land for its
restoration to Respondent No. 1, since her husband grantee was undisputedly a
member belonging to the Scheduled Caste. On appeal by the appellant, the said
order of Asst. Commissioner came to be confirmed by respondent No.3 Deputy
Commissioner by his order dated 13.3.1995. The appellant, therefore, sought for
quashing of both orders on the ground that both the authorities below have
erred in declaring null and void the said sale dated 16.2.1965 made by the grantee
in favour of Manche Gowda on application of sub- rule (4) of Rule 43-G of Mysore
Land Revenue (Amendment) Rules, 1960.
4. The
stand of the appellant before the High Court was that Rule 43 G(4) was
inapplicable in respect of the said granted land, as the correct rule
applicable was sub-rule (J) of Rule 43.
It was
stated that the Deputy Commissioner had indicated that the land was initially
granted on the basis of temporary lease which came to be confirmed by a
subsequent order in favour of the lessee. Since the initial grant was on lease
basis which came to be confirmed by a subsequent order, the correct Rule
applicable in that event is Rule 43(J) and not Rule 43G(4). It was further
canvassed that once the grant was under Rule 43(J) any condition imposing ban
on alienation thereof will be inopeative and unenforceable. The stand of the
State Government was that the grant of land in favour of respondents late
husband was made not under Rule 43-J but it was in fact under Rule 43-G. The
High Court held the authorities were right in holding that the grant of land
was under Rule 43-G and not under Rule 43-J. Accordingly, the writ petition was
dismissed. Before the Division Bench of the High Court, the stand taken before
the learned Single Judge was reiterated but was rejected.
5. In
support of the appeal, learned counsel for the appellant submitted that the
correct Rule is Rule 43-J and not 43 (G) (4). Therefore it is submitted that a
different scheme is applicable.
6.
Similar issue was considered by this Court in Guntaiiah it was stated as
follows:
14.
It is also pertinent to note that the prohibition regarding alienation is a
restrictive covenant binding on the grantee. The grantee is not challenging
that condition. In all these proceedings, challenge is made by the third party
who purchased the land from the grantee. The third party is not entitled to say
that the conditions imposed by the grantor to the grantee were void. As far as
the contract of sale is concerned, it was entered into between the Government
and the grantee and at that time the third-party purchaser had no interest in
such transaction. Of course, he would be entitled to challenge the violation of
any statutory provisions but if the grant by itself specifically says that
there shall not be any alienation by the grantee for a period of 15 years, that
is binding on the grantee so long as he does not challenge that clause, more so
when he purchased the land, in spite of being aware of the condition. The Full
Bench seriously erred in holding that the land was granted under Rule 43-J and
that the Authorities were not empowered to impose any conditions regarding
alienation without adverting to Section 4 of Act 2 of 1979. These lands were
given to landless persons almost free of cost and it was done as a social
welfare measure to improve the conditions of poor landless persons. When these
lands were purchased by third parties taking advantage of illiteracy and
poverty of the grantees, Act 2 of 1979 was passed with a view to retrieve these
lands from the third-party purchasers. When Act 2 of 1979 was challenged, this
Court observed in Manchegowda v. State of Karnataka : (SCC pp. 310-11, para 17)
17.
Granted lands were intended for the benefit and enjoyment of the original
grantees who happen to belong to the Scheduled Castes and Scheduled Tribes. At
the time of the grant, a condition had been imposed for protecting the
interests of the original grantees in the granted lands by restricting the
transfer of the same.
The
condition regarding the prohibition on transfer of such granted lands for a
specified period, was imposed by virtue of the specific term in the grant
itself or by reason of any law, rule or regulation governing such grant. It was
undoubtedly open to the grantor at the time of granting lands to the original
grantees to stipulate such a condition the condition being a term of the grant
itself, and the condition was imposed in the interests of the grantee. Except
on the basis of such a condition the grantor might not have made any such grant
at all. The condition imposed against the transfer for a particular period of
such granted lands which were granted essentially for the benefit of the
grantees cannot be said to constitute any unreasonable restriction. The granted
lands were not in the nature of properties acquired and held by the grantees in
the sense of acquisition, or holding of property within the meaning of Article
19(1)( f ) of the Constitution. It was a case of a grant by the owner of the
land to the grantee for the possession and enjoyment of the granted lands by
the grantees and the prohibition on transfer of such granted lands for the
specified period was an essential term or condition on the basis of which the
grant was made. It has to be pointed out that the prohibition on transfer was
not for an indefinite period or perpetual. It was only for a particular period,
the object being that the grantees should enjoy the granted lands themselves at
least for the period during which the prohibition was to remain operative.
Experience had shown that persons belonging to Scheduled Castes and Scheduled
Tribes to whom the lands were granted were, because of their poverty, lack of
education and general backwardness, exploited by various persons who could and
would take advantage of the sad plight of these poor persons for depriving them
of their lands. The imposition of the condition of prohibition on transfer for
a particula r period could not, therefore, be considered to constitute any
unreasonable restriction on the right of the grantees to dispose of the granted
lands. The imposition of such a condition on prohibition in the very nature of
the grant was perfectly valid and legal.
7. In
view of the aforesaid decision, this appeal is without merit and dismissed.
There shall be no order as to costs.
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