1 IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH DATED THIS THE 15 TH DAY OF DECEMBER, 2014 BEFORE THE HONOURABLE MR. JUSTICE ANAND BYRAREDDY WRIT PETITION No.24411/2005 (SC/ST) Between: Smt.Guthemma Kom Fakira Chalvadi Aged about 70 years, Residing at Kanthragi, Sirsi, N.K. PETITIONER (By Shri S.G.Kadadakatti, Advocate) And: 1. Shri Bhangarya Bista Naik Dasan, Aged about 59 years, Residing at Gudnapur, Sirsi, N.K. 2. The Deputy Commissioner, Uttara Kannada, Karwar District. 3. The Assistant Commissioner, Sirsi Division, Sirsi, N.K. RESPONDENTS (By Shri R.G.Hegde, Advocate for Respondent no.3,
Smt. K.Vidyavathi, Additional Government Advocate for Respondent Nos.2 and 3) 2 This Writ petition is filed under Articles 226 and 227 of the Constitution of India praying to quash the order dated 19.9.2005 vide Annexure J and order dated 3.11.2004 vide Annexure-E and to allow the above writ petition. This Writ Petition having been heard and reserved on 4.12.2014 and coming on for Pronouncement of Orders this day, the Court delivered the following: ORDER The facts of the case are as follows: 2. It is stated that land bearing survey no.232, measuring about 8 acres and 19 guntas of Kanthraji village, Sirsi Taluk, North Kannada District was granted to the petitioner s late husband, Fakira Basavanna Chalavadi, on 20.4.1959. He is said to have belonged to a Scheduled caste. The grant was said to be coupled with a condition that it shall not be alienated or sub-divided, in perpetuity. The grant was free of cost. It transpires that Chalavadi died as on 8.12.2002. The petitioner is said to have sought for transfer of the property in her favour after the death of her husband. It is then that she
3 was made aware that her husband and she had executed a sale deed in respect of the property in favour of the first respondent, as on 29.7.1972. According to the petitioner, the said sale transaction was manipulated and fraudulent and was never intended nor consciously executed. The petitioner is hence said to have made an application, dated 22.3.2003, before the third respondent seeking cancellation of the said sale. It was canvassed that the alienation was unlawful and that any alleged permission granted by the third respondent in respect of the sale was without authority of law, as he had no jurisdiction to grant any such permission. The first respondent, who is said to have contested the proceedings, had contended that he had purchased the land in question after obtaining permission from the competent authority in the manner known to law and that the petitioner s husband had not raised any dispute about the transaction during his life time.
4 The application of the petitioner having been rejected by the third respondent, by an order dated 3.11.2004, an appeal was said to have been preferred before the second respondent. While holding that the third respondent was not the competent authority at the relevant point of time to grant permission for the alienation of the land, the appeal is said to have been dismissed as barred by delay and laches. It is that order which is under challenge in this petition. 3. On a consideration of the rival contentions and on a perusal of the record and having due regard to the legal position, it is to be noticed that the appellate authority has found that the Assistant Commissioner, who had granted permission for the alienation by the grantee in favour of the petitioner, was not the competent authority to have granted such permission at the relevant point of time. However, it was also found that the grantee was a willing party to the sale transaction, which was sought to be questioned after several decades and has thus concluded that the sale was saved though
5 the permission granted was not by the competent revenue authority. The above reasoning of the authority cannot be sustained as it is well settled that there is no prescription of any period of limitation in so far as the application of the provisions of the Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 (Hereinafter referred to as the PTCL Act, for brevity) is concerned. (See: M.Narayanappa v. The Special Deputy Commissioner, ILR 2006 Kar. 2506; WA 2887/2004, Hospet Thippanna & another v. Jettappa & others, dated 6.12.2006 ) It is also to be noticed that the status of the parties, by operation of law also stood altered notwithstanding their intention or conduct. In that, whether a grant had been made under any of the Rules in force in the Bombay area, Coorg District, Hyderabad area, Madras area or Mysore area of the State, with the coming into force of the Mysore Land Grant Rules 1968, (Hereinafter referred to as the MLG Rules, for
6 brevity) framed under Section 197 of the Karnataka Land Revenue Act, 1964 (Hereinafter referred to as the KLR Act, for brevity), all Rules corresponding to the same, in force in the above areas, stood repealed. Rule 40 of the MLG Rules read as follows : 40. Repeal and Savings :- All rules corresponding to the foregoing rules in force in Bombay area, Coorg District, Hyderabad area, Madras area and Mysore area are hereby repealed: Provided that the repeal shall not affect (a) the previous operation of any rule so repealed or anything duly done or suffered thereunder: (b) any right, privilege, obligation or liability acquired, accrued or incurred under any rule so repeated: (c) any penalty, forfeiture or punishment incurred in respect of any breach of or any offence committed against any rule so repealed; or (d) any investigation or legal proceedings or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid and any legal proceedings or remedy may be instituted, continued or enforced and any such penalty, forfeiture or punishment may be imposed as of such rule had not been repealed; Provided further that subject to the preceding proviso anything done or any action taken (including any
7 notification, order, instruction, or direction issued) under any such rule shall be deemed to have been done or taken under the corresponding provision of these rules and shall continue to be in force accordingly, unless and until superseded by anything done or any action taken under the Act or these rules, as the case may be. Hence by operation of the above Rule, notwithstanding any term or condition in the deed of grant, which conferred any qualified right on the grantee to alienate or transfer the granted land, by virtue of Rule 40 above, it stood saved. In so far as the erstwhile Madras area is concerned, which also formed part of the Mysore State since 1956, Rule 41 of the Madras Board Standing Order, which dealt with the restraint on the alienation of land granted to a member of the Scheduled caste or tribe, read as follows : Assignments whether of ordinary land or of valuable land in these areas will be subject to the condition that the lands shall not be alienated to any person (whether a member of the Scheduled Castes or not) in any manner, before the expiry of ten years from the date of the grant nor even thereafter except to other members of these castes.
8 No similar Rule was found in any of the corresponding Rules in respect of other areas. The MLG Rules, 1968 stood repealed and were replaced by the Karnataka Land Grant Rules, 1969 (Hereinafter referred to as the KLG Rules, for brevity). Section 30 of the KLG Rules reads as follows : 30. Repeal and Savings The Karnataka Land Grant Rules, 1968 and Karnataka Land Revenue (Amendment) Rules, 1967 (Rule 93-A) are hereby repealed: Provided that the repeal shall not affect:- (a) the previous operation of any rule so repealed or anything duly done or suffered thereunder; (b) any right, privilege, obligation or liability acquired, accrued or incurred under any rule so repealed; (c) any penalty, forfeiture or punishment incurred in respect of any breach of or any offence committed against any rule so repealed; or (d) any investigation or legal proceedings or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid and any legal proceedings or remedy may be instituted, continued or enforced and any such penalty,
9 forfeiture or punishment may be imposed as if such rule had not been repealed; Provided further that subject to the preceding provision anything done or any action taken (including any notification, order, instruction or direction issued), under any such rule shall be deemed to have been done or taken under the corresponding provision of these rules shall continue to be in force accordingly, unless and until superseded by anything done or any action taken under the Act or these, as the case may be. The resultant position was, inter alia, that any right or obligation acquired or incurred under the respective Rules still governed the respective grants. The common feature under the Rules governing granted land was that there is a statutory period prescribed, during which an alienee was precluded from affecting any alienation. The period was varied in respect of grants made to the weaker sections. The object obviously was that the beneficiary of the grant should enjoy the grant himself and should not transfer the benefit and thereby defeat the object.
10 Rule 29A was incorporated into the Karnataka Land Revenue Rules, 1966 (Hereinafter referred to as the KLR Rules, for brevity), with effect from 17.10.1974. It read as follows : 29A. Certain conditions not to apply: Notwithstanding anything contained in Rule 40 of the Karnataka Land Grant Rules, 1969, the provisions of any Rule (repealed by the said Rule), that the land granted shall not be alienated except to the members of the Scheduled Castes and Scheduled Tribes shall, with effect from the commencement of the Karnataka Land Grant (Amendment) Rules, 1974, cease to operate. (There is an apparent error in the above Rule, for the KLG Rules do not have a Rule 40 and hence it was obviously a reference to the 1968 Rules, which contained the repealing Rule 40 ) The effect of the above Rule 29A was that notwithstanding the law in force or the terms of grant which may have provided an enabling provision enabling the grantee to alienate the granted land to a member of a Scheduled caste or
11 tribe, then by virtue of the above Rule, the said right stood abrogated. In other words, no alienation could be effected to any one without sanction of the Government. It is in this background the PTCL Act came to be enacted. It came into force from 1.1.1979. The objects and reasons of the Act are stated to be as under : The non-alienation clause contained in the existing land grant rules and the provisions for cancellation of grants where the land is alienated in contravention of the above said provisions are found not sufficient to help the Scheduled Castes and Scheduled Tribes grantees whose ignorance and poverty have been exploited by persons belonging to affluent and powerful sections to obtain sale or mortgage either for nominal consideration or for no consideration at all and they have become victims of circumstances. To fulfil the purpose of the grant, the land even if it has been alienated, should be restored to the original grantees or their heirs. The Government of India has also been urging the State Governments to enact legislations to prevent alienation of lands granted to Scheduled Castes and Scheduled Tribes by Government on the lines of the model
12 legislation prepared by it and circulated to the State Governments. Section 4 of the PTCL Act prohibited transfer of granted land. It reads as follows : 4. Prohibition of transfer of granted lands (1) Notwithstanding anything in any law, agreement, contract or instrument, any transfer of granted land made either before or after the commencement of this Act, in contravention of the terms of the grant of such land or the law providing for such grant, or sub-section (2) shall be null and void and no right, title or interest in such land shall be conveyed nor be deemed ever to have conveyed by such transfer. (2) No person shall, after the commencement of this Act, transfer or acquire by transfer any granted land without the previous permission of the Government. (3) The provisions of sub-sections (1) and (2) shall apply also to the sale of any land in execution of a decree or order of a civil court or of any award or order of any other authority. Sub-section (1) above saved all transfers made in terms of the grant or in accordance with law providing the grant.
13 Coupled with Rule 40 adverted to above, all transfers made in accordance with the terms of grant or the rules stood saved. This law was given retrospective operation as well. The validity of the legislation stands upheld by the Supreme Court [See 1984(2) KLJ1]. Thus while sub-section 4(1) saved all alienation made in terms of the grant, Rule 29A referred to above deleted one of the permitted clause under which a valid alienation could be made even without permission; but after Rule 29A came into force that particular clause in the grant also stood abrogated. Section 11 of the said Act declared an overriding effect to the legislation and stated as under: 11. Act to override other laws The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any custom, usage or contract or any decree or order of a court, tribunal or other authority.
14 The effect of the above provisions was that all alienations contrary to the statute were declared null and void. However, the consequence envisaged under Section 11 had already been given effect to by virtue of Rule 29A of the KLR Rules with effect from 17.10.1974. In the light of the view expressed in Laxmamma v. State of Karnataka, 1983 (1) KLJ 417, to the effect that granted land could be alienated between the period 17.10.1974 and 1.1.1979 and a contrary view expressed in Bhagi Hengsu v. Rocy Lasrado, ILR 1991 Kar 2375, a Full bench of this court in B.Mohammed v. Deputy Commissioner, Mangalore, ILR 1999 Kar. 634 has clarified that on and after 17.10.1974, i.e. the date from which Rule 29A of the KLR Rules was introduced and till 1.1.1979, the date of coming into force of the PTCL Act, all transactions were subject to Rule 29A, and it could not be understood that the same stood obliterated, retrospectively. In the light of the above, the alienation of the granted land in the instant case even with permission of the competent
15 authority was illegal and impermissible as it was effected in the face of the condition that the grant was made with a restriction on alienation in perpetuity, in any event, the alienation was made even against the statutorily provided non-alienation period. The writ petition is allowed. The impugned orders are quashed. The land in question shall be resumed and restored to the petitioner. Sd/- JUDGE nv