@JUDGMENTTAG-ORDER
1. In this writ petition under Article 226 of the Constitution of India, the petitioner has called in question the correctness and legality of the order made by the Deputy Commissioner-first respondent herein at Annexure-C, dated 7-10-1985, and he has sought for quashing the same for the reasons set out in the writ petition.
2. The brief facts of the case necessary for the disposal of this write petition are as follows:
4 acres of land in Sy. No. 9/1, situated in Thammadahalli Village, Hunsur Taluk, Mysore Dist. was granted on lease for one year for 1950-51 by the competitive authority under the Mysore Land Grant Rules, in favour of Kellaiah, father of Madaiah, petitioner herein. Accordingly a Certificate of Leasehold Rights came to be issued in his favour on 27-3-1950. It is not in dispute that the land in question came to be sold in favour of (1) Marigowda and (2) Chikkaputtegowda, husbands of respondent 3 and respondent 4 of Thippalapura Village, Hanagodu Hobli, Hunsur Taluk, under a registered sale deed dated 1-3-1954. After the coming into force of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 (hereinafter referred to as the ''Act'') the petitioner, son of the original grantee, approached the Assistant Commissioner-second respondent with an application requesting the authority for a declaration that the alienation was null and void and for restoration of the land to him as, according to him, the land was sold in contravention of the condition of the grant.
The Assistant Commissioner, having notified the persons interested, held an enquiry and passed the order Annexure-B, declaring the sale as null and void and directing restoration of the land to the petitioner on the ground that the land was sold against the condition of grant that it shall not be alienated for a period of 15 years.
Aggrieved by the said order, respondents 3 and 4 filed an appeal before the Special Deputy Commissioner, Mysore District, Mysore, who, having heard the learned counsel on both sides, allowed the appeal and set aside the order of the Assistant Commissioner holding that as the land in question was sold in public auction for a valid consideration, the provisions of the Act were not attracted. Hence, this writ petition under Article 226 of the Constitution of India.
3. The main contention urged by the learned counsel for the petitioner is that the land in question was not sold by public auction as stated by the first respondent Deputy Commissioner, but was granted under the Land Grant Rules then prevailing which provided permanent prohibition to alienate the land and that therefore the Deputy Commissioner was not correct in allowing the appeal and setting aside the order of the Assistant Commissioner.
4. The learned counsel appearing for respondents 3 and 4 has not been able to impress upon me as to why the impugned order of the Deputy Commissioner should be sustained.
5. Now the question that arises for consideration is whether the Deputy Commissioner was right in selling aside the order of the Assistant Commissioner on the ground that the land was not a granted land but was purchased in public auction.
6. With a view to answer the above question, it is better to refer to the original records produced by Sri Thimme Gowda, learned HCGP.
7. At the outset, the report of the Tahsildar available in the original records discloses that land in Sy. No. 9/1 was an unassessed waste land measuring 120 acres, 31 guntas and the Tahsildar directed Sale Istchar in respect of 4 acres out of that land. After obtaining the necessary orders from the Deputy Commissioner, the Tahsildar, issued a notice on 5-10-1949.
8. I verified the notice through which, the Tahsildar sought to sell right of occupancy of unoccupied land of 4 acres for the purpose of cultivation for only one year. It may be emphasised that by virtue of the said notice, no land of the Government was sought to be sold in public auction, as contended by the respondents, and on the other hand, what was intended was only to sell right of cultivation. Accordingly, right of cultivation came to be sold in public auction which was concluded on 29-10-1949. The father of the petitioner, was the highest bidder. The said sale was confirmed on 11-3-1950 by the competent authority. Accordingly a certificate of Grant came to be issued on 27-3-1950. A certified copy of it is found in the records at page 2. The certificate was issued in Form 1 given in Schedule-E at page 171 of the Land Revenue Code. By a perusal of the language employed in Schedule-E it is made clear that an agreement is to be obtained by the highest bidder in respect of the sale of right of cultivation tor a period of one year. Para 7 of the condition imposed at page 2 of the certificate clearly goes to show that this certificate was issued subject to the condition mentioned in ink as "1950-51 salige".
9. By a careful consideration of all these materials it is undoubtedly made clear that what was sold in public auction in favour of the father of the petitioner was only right of cultivation of unoccupied land to the extent of 4 acres in Sy. No. 9/1 belonging to the Government to be enjoyed as a tenant for a period of one year, i.e., 1950-51. Thus the father of the petitioner was enjoying right of occupancy from the date of issuance of Saguvali Chit issued on 27-3-1950. Therefore, at no point of time the competent authority granted the land in question in favour of the father of the petitioner much less is there any evidence to disclose that the lease of the land in question came to be confirmed by way of grant in his favour. In the absence of these things, it is impossible to accept the contention of the respondents that the land in question was sold in public auction, in favour of the petitioner for a sum of Rs. 21-15 Annas-03 pies. It is very unfortunate that both the authorities below failed to apply their mind to the facts of the case. Both the authorities being the Revenue Authorities ought to have applied their mind to the correctness of the facts before they concluded one way or the other. The Deputy Commissioner failed to refer to the provisions of the Act much less the condition under which the right of occupancy was granted in favour of father of the petitioner for a period of one year i.e., for the year 1950-51. Had he taken certain trouble to refer to the original records which were available at his disposal and the provisions of Land Revenue Code, perhaps he would have been in a better position to answer the question that arose in this case. Under these circumstances, I must hold that the order of the Special Deputy Commissioner in appeal holding that the land in question was sold in public auction and therefore the provisions of the Act cannot be applied, is wholly incorrect and cannot be sustained.
10. Dealing with the approach of the Assistant Commissioner, he held an enquiry under Rule 3 of the rules framed under the Act and passed an order invoking Sections 4 and 5 of the Act. No doubt, he made a mistake in recording a finding that there was a grant of 4 acres of land in favour of the father of the petitioner under the Land Grant Rules, inasmuch as there was no order of grant made under the provisions of Rule 43 of the Land Grant Rules. But none the less having regard to the Certificate of Grant, conferring occupancy right on the father of the petitioner to enable him to cultivate the land for a period of one year i.e., 1950-51, subject to the condition referred to herein, the fact remains that the lessee continued to enjoy the land till he sold the land by a registered sale deed, dated 1-3-1954. Therefore, in that view till 1-3-1954 the father of the petitioner, lessee was enjoying the land in question legitimately, though it was open to the competent authority to resume the land after the expiry of one year. It is nobody''s case that such an action was taken, although there is enough material to show that as on 1-3-1954 the lessee continued to enjoy the land. Keeping this in view, it is necessary to refer to Section 3(b) of the Act which reads:
"3(b) ''granted land'' means any land granted by the Government to a person belonging to any of the Scheduled Castes or the Scheduled Tribes and includes land allotted or granted to such persons under the relevant law for the time being in force relating to agrarian reforms or land ceilings or abolition of inams, other than that relating to the hereditary offices or rights and the word ''granted'' shall be construed accordingly."
11. In the light of the language employed in that section, it seems to me that even the Government Land allotted or granted as a measure of conferring leasehold rights in favour of persons belonging to Scheduled Castes and Scheduled Tribes, if such persons continue to enjoy the land even after the expiry of the period of lease, would come within the definition of ''granted land''. That being the position such a land cannot be sold against the condition of grant provided under the rule in force on the date of grant, having regard to the object sought to be achieved under the Act. When the Saguvali Chit was issued in this case on 27-3-1950, Rule 43(8) as it stood originally, was in force and according to which, the granted land shall not be alienated to any body at any time. In other words, there was a permanent prohibition. Against the said condition the land was sold. Though the Assistant Commissioner took a different approach, his ultimate conclusion cannot be interfered with.
12. In the result, I make the following order:
Writ Petition is allowed.
The impugned order of the Special Deputy Commissioner at Annexure-C is quashed. The order of the Assistant Commissioner made as per Annexure-B is restored. No costs.
Sri Thimme Gowda, learned HCGP is permitted to file memo of appearance for respondents 1 and 2 within four weeks.
Ordered accordingly.
