Thippaiah v. The Deputy Commissioner & Others

Harinath Tilhari, J.:—

By this petition, the petitioner has challenged the order at Annexure-B dated. 22.5.1995 in SC PTL (A) 20/94-95 and has prayed for issuance of writ of certiorari and for the quashing of the above mentioned order and for the dismissal of the application of respondent No. 3 in the case of SC PTL 2/94-95 which is on the file of the second respondent - Assistant Commissioner, Chitradurga Sub-Division, Chitradurga.

2. The petitioner claims to be the owner in possession of the land in dispute bearing Sy. No. 71/3 (New No. 431) area 5 acres situated in Hirehalli Village, Taluk Challakere, Chitradurga District on the basis of purchase of the said land made by him and under the registered Sale Deed dated 31.5.1988 (Document No. 445/88-89) alleged to have been executed by one Bharamaiah of Hirehalli Village. The petitioner claimed to be in possession of the land and enjoyment thereof under that Sale Deed. He alleged that the Sale Deed had been executed for valuable consideration. The petitioner's case is that respondent filed an application under Section 5 of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 (hereinafter described as the ‘Act’ of 1978) for declaration that the aforesaid sale deed dated 31-5-1988 has been invalid and void and for restoration of possession of the land to him. It has been alleged in the petition that respondent No. 3 claimed himself to be the son of Vendor-Bharamaiah of Hirehalli. The 3rd respondent claimed that the land has been transferred in breach of the provisions of the Act of 1978. By order dated 13-1-1995 the Asst. Commissioner, i.e, respondent No. 2 after having held the enquiry came to the conclusion that the land had been alienated after a period of 31 years from the date of grant and there is no violation of the conditions of grant and dismissed that application. The true copy of the order has been annexed by the petitioner as Annexure-A to the Writ Petition. The petitioner's further case is that respondent No. 3 challenged that order of the Assistant Commissioner by filing the appeal before the first respondent i.e, Deputy Commissioner, Chitradurga District, Chitradurga. The 1st respondent - Deputy Commissioner, Chitradurga, by his order dated 22-5-1995 allowed the appeal filed by 3rd respondent and set aside the order of the Assistant Commissioner (Annexure-A). The Deputy Commissioner allowed the appeal on the sole ground that the petitioner had not obtained any previous permission of the State Government for purchasing the said land from Bharamaiah. The true copy of the order dated 22-5-1995 has been annexed by the petitioner as Annexure-B to the Writ Petition.

3. Having felt aggrieved from the order of the Deputy Commissioner dated 22-5-1995 the copy of which is Annexure-B to the Writ Petition the vendee, the purchaser i.e, the present petitioner has filed this petition under Articles 226 and 227 of the Constitution of India for a writ or a direction in the nature of writ of certiorari and has prayed for quashing of the appellate order and has further prayed for a rejection of the application moved by respondent No. 3.

4. I have heard Sri Kaleemulla Shariff, learned Counsel for the petitioner at some length as well as Sri Siddagangiah, learned Government Counsel appearing for and on behalf of respondents-1 and 2 at the admission stage.

5. The learned Counsel for the petitioner when he was called upon to explain whether a notice was issued from the office of the Assistant Commissioner of the application that had been moved by respondent No. 3 under Section 5 of the Act. The learned Counsel for the petitioner conceded that no doubt notice had been served and it has one of the objections of the petitioner to the effect that the transfer had taken place more than thirty years ago or thirty years earlier to the date of the grant of land. The land had been granted in favour of Bharmaiah and it is after the expiry of the period of thirty years that the transfer had taken place in favour of the petitioner. The Assistant Commissioner passed the order upholding this contention of the petitioner to the effect that the transfer had been effected after the expiry of the period of thirty years. The Assistant Commissioner rejected the application of respondent No. 3 after having held that the transfer cannot be held to be void as it was made much after the expiry of a period of fifteen years and he submitted that so far as the plea that he was not given notice he does not press. The learned Counsel for the petitioner submitted that the opposite party had to prove that he was the heir of Bharamaiah and further that the transfer was in contravention of the provisions of the Act. It appears that no such plea was raised that respondent No. 3 was not the son of Bharamaiah. The only contention that had been raised was that the transfer in favour of the petitioner had taken place long after a period of 30 years and it is not void. If that plea had not been raised that respondent No. 3 was not the son of Bharamaiah that plea is not open to be raised at the stage of admission. Apart from that the Appellate Authority has recorded that respondent No. 3 was son of Bharamaiah and he belonged to Adi Karnataka caste which is one of the Scheduled Castes in the State of Karnataka. The order of the Appellate Authority has been explained to me in English and as it has been contended in the Writ Petition also that the Appellate Authority allowed the appeal primarily on one of the grounds that there has been violation of sub-section (2) of Section 4 of the Act.

Section 4 of the Act reads as under:

“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.

Language of the Section per se is very clear. Sub-section (1) provides for the prohibition against the transfer of the granted lands; it provides that irrespective of what is provided in any other law or any agreement or contract or instrument, any transfer of granted land made either before or after the commencement of this Act, if that transfer has been made in contravention of the terms of grant of such land or if that transfer is in contravention of law providing for such land or if that transfer is in contravention of the provisions of Sub-section (2) of Section 4 then that transfer of granted land shall be null and void and that transfer shall not be taken to convey any right, title and interest in such land i.e, in the granted land and further that it shall never be deemed to ever convey any title and interest to transfer. A perusal of sub-section (1) per se provides in the case i.e, if a transfer of granted land is made in violation or in contravention of the provisions of Sub-section (2) of Section 4 that shall be null and void and shall be deemed not to have conveyed any rights or interest in the property. Sub-section (2) of Section 4 of the Act further provides that after the commencement of the Act no person shall transfer any granted land without the previous permission of the Government nor shall any person acquire the granted land without the previous permission of the Government itself. It flows from sub-section (2) that any transfer of the granted land has been prohibited and it cannot be made and the only exception is the case where before the transfer the transferee or transferor obtains a permission from the Government i.e prior to the making of the transfer. It further flows therefrom that the transfer made in contravention of sub-section (2) which is declared to be void cannot be validated by subsequent approval of that transfer by the Government. There is nothing to indicate that any previous permission of the State Government was obtained by either parties to the transaction exhibited and entered into under the registered sale deed dated 31-5-1988. In the petition as well no such averment has been made that transfer in 1988 had been made after having obtained a necessary permission of the Government. This being the position, in my opinion, in view of the provisions of sub-section (1) of Section 4 the appellate authority did not commit any error of law apparent on the face of the record or of jurisdiction in setting aside the order of the Assistant Commissioner and in allowing the appeal. The jurisdiction of this Court under Article 226 of the Constitution is primarily confined to examine the question that the order impugned suffers from error apparent on the face of record or error of jurisdiction. As I have mentioned earlier the learned Counsel for the petitioner has very fairly stated that so far as the plea of want of notice is concerned, notice had been served and objection had been filed and taken to the application moved by respondent No. 3 as mentioned earlier.

6. In this view of the matter, in my opinion the order impugned does not suffer from the jurisdictional error nor does it suffer from any error of law apparent on the face of the record. The present Writ Petition is devoid of merits and as such is hereby dismissed. There is no order as to costs.

7. The learned Government Pleader Sri Siddagangaiah, is permitted to file his memo of appearance within four weeks.