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CASE NO.: Appeal (civil)  1320 of 2008

PETITIONER: B.K. Muniraju

RESPONDENT: State of Karnataka & Ors

DATE OF JUDGMENT: 15/02/2008

BENCH: Tarun Chatterjee & P. Sathasivam

JUDGMENT: JUDGMENT

CIVIL APPEAL NO.    1320                OF 2008 (Arising out of SLP (C) No. 21914 OF 2004)

P. Sathasivam, J.

1)      Leave granted.  2)      This appeal is directed against the order dated  12.07.2004 in Writ Appeal No. 795 of 2002 of the High Court  of Karnataka at Bangalore dismissing the appeal of the  appellant confirming the order dated 07.12.2001 in Writ  Petition No. 809 of 2000 of the learned single Judge.

3)      Brief facts: The land in question bearing Survey No. 72 of  Bommanahalli Village, Begur Hobli, Bangalore South Taluk  was allotted to the grand-father of the appellant, namely,  Motappa, who belongs to the Bhovi Community under the  Mysore Land Grant Rules.  The total extent of mortgaged  land was 2 acres 29 guntas.  Later in 1956, Motappa  mortgaged 1 acre of the said land to one Munichennamma.   Subsequently in 1959, he mortgaged another portion of the  land in favour of one Ramachandra Reddy, who was the  father of respondent Nos. 4 & 5 herein by raising a loan of  Rs. 1000/- to discharge his previous mortgage amount. 4)              After the demise of Motappa and Ramachandra  Reddy, B.K. Muniraju, the appellant herein and one M.  Gopal paid the mortgaged amount of Rs.1000/- to  respondent Nos. 4 & 5 and requested them to discharge the  mortgage.  Respondent Nos. 4 & 5 refused to discharge the  mortgage on the ground that it was not a mortgage deed but  an absolute sale deed.  On 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"), in the year 1981, the  appellant herein along with M.Gopal, who died during the  pendency of writ appeal, and also a legal heir of deceased  Motappa filed an application before the Assistant  Commissioner for cancellation of the sale deed and  restoration of the land under the provisions of the said Act.   The Assistant Commissioner dropped the proceedings on  the ground that the alienation is after the expiry period of  ten years of non-alienation clause and hence the sale  transaction is not in violation of the condition governing  grant and, therefore, it does not attract the provisions of  Section 4(1) of the Act.  Against the said order, the appellant

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preferred an appeal before the Deputy Commissioner which  was also dismissed.  Thereafter, the appellant approached  the High Court by filing Writ Petition No. 11821 of 1987 and  the High Court allowed the said petition and remanded the  matter to the Assistant Commissioner for fresh disposal.   The High Court, in its order, directed the Assistant  Commissioner to examine the original Saguvali chit besides  the original records relating to grant proceedings to the land  in question and then decide whether or not the provisions of  the Act are attracted to the facts of the case and whether  the prohibition or alienation has been violated by the  grantee.  Based on the said direction of the High Court, the  Assistant Commissioner heard the matter afresh.  Finally,  the Assistant Commissioner dismissed the matter holding  that the land in question is not a "granted land" but was  purchased by Motappa in public auction and hence, the Act  is not applicable.  It was also held that the auction  purchaser does not come under the Rules relating to the  grant and there is no violation of the conditions of the  grant.  Questioning the said order of the Assistant  Commissioner, the appellant herein preferred an appeal  before the Deputy Commissioner who also dismissed the  appeal holding that the land granted at an upset price is  alienated after a period of ten years of non-alienation  condition period, that the land granted at an upset price,  did not attract the provisions of Section 4(1) of the Act.  The  Deputy Commissioner also held that the Saguvali chit  issued in Form No.1 indicates that the land was allotted to  Motappa in public auction at an upset price of Rs.408.12. 5)              Aggrieved by the aforesaid order of the Deputy  Commissioner, the appellant filed Writ Petition No. 809 of  2000 before the High Court.  The main grievance of the  appellant before the learned single Judge was that the land  was granted under the Mysore Land Revenue Rules and not  a land sold at public auction.  It was contended that  insofaras the "granted lands" are concerned, there was a  total prohibition from alienating the land as per the Rules  that were prevailing at the time of grant in question.   However, the learned single Judge dismissed the writ  petition and the writ appeal filed by the appellant herein  was also dismissed by the Division Bench which is  impugned in this appeal. 6)              Heard Mr. Altaf Ahmed, learned senior counsel  appearing for the appellant and Mr. S.N. Bhat, learned  counsel appearing for respondent Nos. 4 & 5 and Mr. Amit  Kumar Chawla, learned counsel appearing for respondent  Nos. 1-3. 7)              Mr. Altaf Ahmed, learned senior counsel appearing  for the appellant, by taking us through the provisions of the  Karnataka Scheduled Castes and Scheduled Tribes  (Prohibition of Transfer of Certain Lands) Act, 1978 as well  as the Rules under the Mysore Land Revenue Code,  contended that the authorities as well as the High Court  committed an error in rejecting the claim of the appellant  inasmuch as it contraverts the said Act and the Rules.  He  further submitted that in view of the earlier order of the  High Court directing the Assistant Commissioner to verify  the original record and arrive a fresh conclusion, the  contrary decision by the said officer is liable to be interfered  with.  On the other hand, Mr. S.N. Bhat, learned counsel  appearing for the contesting respondents 4 & 5, submitted  that in view of the specific factual finding by both the  authorities namely, that Motappa purchased the land in  question by offering "price" in a public auction and it was  not a "granted land", and the same was duly considered and

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affirmed by the High Court, there is no valid ground for  interference. 8)              We have perused all the relevant materials,  Annexures and considered the rival contentions. The only  question to be considered in this appeal is whether the land  in question was "granted land" or "purchased for a price" by  Motappa?  If it is found that the subject matter of a land  was not a "granted land", it does not attract the vice of  Section 4 of the Act.    9)              The Statement of Objects and Reasons of the  Karnataka Scheduled Castes and Scheduled Tribes  (Prohibition of Transfer of Certain Lands) Act, 1978 shows  that 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 provision are found not sufficient to help the  Scheduled Castes and Scheduled Tribes grantees whose  ignorance and poverty have been exploited by persons  belonging to the affluent and powerful sections to obtain  sales or mortgages either for a nominal consideration or for  no consideration at all and they have become the victims of  circumstances.  To fulfill the purposes of the grant, the land  even if it has been alienated, should be restored to the  original grantee or his heirs.  It is clear that in order to  provide for the prohibition of transfer of certain lands  granted by Government to persons belonging to the  Scheduled Castes and Scheduled Tribes in the State of  Karnataka, the above said Act was enacted.  In order to  implement the provisions of the Act, the Rules were framed.   Among the provisions, we are concerned with Section 4  which prohibits transfer of "granted land".  It makes it clear  that notwithstanding anything in any law, agreement,  contract on instrument, any transfer of granted land made  either before or after the commencement of the 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 or be deemed ever to have conveyed by such  transfer.  Sub-section (2) makes it clear that no person  shall, after the commencement of the Act, transfer or  acquire by transfer any granted land without the previous  permission of the Government.  As per sub-section (3), the  provisions of sub-sections (1) and (2) also apply 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. 10)     Among the Rules, Rule 43 is relevant which speaks  about the grant of occupancies.  Sub-rule(1) of Rule 43  mandates that all the lands shall ordinarily be sold by  public auction.  Sub-rule (5) mandates Grant of  occupancies to members of depressed classes.  Sub-Rule (8)  makes it clear that lands granted free or at upset price shall  not be alienated but may be accepted as security for loans.   The note appended to the above provisions makes it clear  that depressed classes occurring in these rules will have to  be constructed as equivalent to the words "Scheduled Caste  and Scheduled Tribes" occurring in the Constitution of  India. 11)     From the materials, now we have to see whether the  land purchased by Motappa was a "granted land" as  claimed by the appellant herein and one M. Gopal or  purchased by public auction for a price as claimed by  contesting respondents 4 & 5 herein?  In order to  understand whether the land in question was a "granted  land" or "land purchased for a price at a public auction", it  is incumbent on the part of the authorities to look into the

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relevant records and decide the same.  In view of the  controversy in question, we verified the document and the  orders passed by the Assistant and the Deputy  Commissioner and the factual findings recorded by them.  It  reveals that the land in question was granted in 1948 and  the Certificate of Grant/Saguvali Chit which was filed as  Annexure R-1 before the High Court (Annexure P-3 before  us)  shows that the same was sold in public auction for a  price.  In other words, the land was purchased by Motappa  at a public auction and it was not a "granted land" within  the meaning of Rule 43(8) of the Rules.  It was contended  that the finding recorded by both the authorities is  essentially a factual finding based on the relevant materials  and the same cannot be interfered with by the writ court.   12)     The document in question which is filed as  Annexure P-3, has been styled or titled as "Certificate of  Grant".  In order to know the real nature of the document,  one has to look into the recitals of the document and not  the title of the document.  The intention is to be gathered  from the recitals in the deed, the conduct of the parties and  the evidence on record.  It is settled law that the question of  construction of a document is to be decided by finding out  the intention of the executant, firstly, from a comprehensive  reading of the terms of the document itself, and then, by  looking into to the extent permissible \026 the prevailing  circumstances which persuaded the author of the document  to execute it.  With a view to ascertain the nature of a  transaction, the document has to be read as a whole.  A  sentence or term used may not be determinative of the real  nature of transaction.  Reference in this regard can be made  to the following cases i.e. Vidhyadhar vs. Manikrao & Anr.,  (1999) 3 SCC 573, Subbegowda (Dead) by LR. vs.  Thimmegowda (Dead) by LRs., (2004) 9 SCC 734 and  Bishwanath Prasad Singh vs. Rajendra Prasad & Anr.,  (2006) 4 SCC 432. 13)     The above principles make it clear that we have to  see terms and conditions and recitals in the document and  not the title alone.  Though the document, according to the  appellant, "Certificate of Grant", perusal of the clauses  therein, clearly shows that the land was sold on 04.03.1948  in a public auction and Motappa purchased the same for a  price of Rs.408.12.  In addition to the recitals, the "darkhast  register extract" produced as Annexure "C" before the High  Court also shows that the land in question was sold for a  "price".  Form I also indicates that the land in question was  purchased and what was paid by the purchaser under the  said document was the purchase price.  In the light of the  principles mentioned above and the terms and conditions in  the recital clearly show that the land was purchased by  Motappa in a public auction for a price.  Merely because the  document has been styled or titled as "Certificate of Grant",  it cannot be construed that the land was a "granted land"  attracting the provisions of the Act and the Rules.  The  Assistant and the Deputy Commissioner, the authorized  authorities under the Act and Rules, on verification of the  contents of the document coupled with Revenue extract  rightly concluded that the land was purchased by Motappa  in a public auction for a price even in the year 1948.   14)     Now let us consider the jurisdiction of the High  Court for interference in a factual decision arrived at by the  authorities.  It is relevant to point out that the appellant  and Mr. Gopal filed Writ Petition No. 809 of 2000 before the  High Court praying to quash the orders dated 11.03.1999  and 20.09.1999 issued by the Assistant and Deputy  Commissioner \026 respondent Nos. 2 and 3 herein, by

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issuance of Certiorari. It is settled law that a writ of  Certiorari can only be issued in exercise of extraordinary  jurisdiction which is different from appellate jurisdiction.   The writ jurisdiction extends only to cases where orders are  passed by inferior courts or tribunals or authorities in  excess of their jurisdiction or as a result of their refusal to  exercise jurisdiction vested in them or they act illegally or  improperly in the exercise of their jurisdiction causing grave  mis-carriage of justice.  In regard to a finding of fact  recorded by an inferior tribunal or authority, a writ of  Certiorari can be issued only if in recording such a finding,  the tribunal/authority has acted on evidence which is  legally inadmissible, or has refused to admit an admissible  evidence, or if the finding is not supported by any evidence  at all, because in such cases the error amounts to an error  of law.  It is needless to mention that a pure error of fact,  however grave, cannot be corrected by a writ.  It is useful to  refer the decision of this Court in Surya Dev Rai vs. Ram  Chander Rai and Others, (2003) 6 SCC 675 wherein, in  para 38, held as under: "\005\005(3) Certiorari, under Article 226 of the  Constitution, is issued for correcting gross errors of  jurisdiction i.e. when a subordinate court is found to  have acted (i) without jurisdiction \026 by assuming  jurisdiction where there exists none, or (ii) in excess of  its jurisdiction \026 by overstepping or crossing the limits  of jurisdiction, or (iii) acting in flagrant disregard of  law or the rules of procedure or acting in violation of  principles of natural justice where there is no  procedure specified, and thereby occasioning failure of  justice." 15)     It is clear that whether it is a writ of Certiorari or the  exercise of supervisory jurisdiction, none is available to  correct mere errors of fact or of law unless the following  requirements are satisfied:     (i) the error is manifest and  apparent on the face of the proceedings such as when it is  based on clear ignorance or utter disregard of the provisions  of law, and (ii) a grave injustice or gross failure of justice  has occasioned thereby.  It is also clear that the High Court  in exercise of certiorari or supervisory jurisdiction will not  convert itself into a court of appeal and indulge in  reappreciation or evaluation of evidence or correct errors in  drawing inferences or correct errors of mere formal or  technical character.  As observed in Surya Dev Rai vs.  Ram Chander Rai (supra), the exercise of jurisdiction  under article 226 or 227 of the Constitution cannot be tied  down in a straight jacket formula or rigid rules.  To put it  clear though the power is there but the exercise is  discretionary which will be governed solely by the dictates of  judicial conscience enriched by judicial experience and  practical wisdom of the judge.  16)       In the light of the above principles, let us consider  whether the High Court committed any error in dismissing  the writ petition.  We have already referred to the recitals in  the document produced before the High Court which  though titled as certificate of grant/Saguvali chit, various  terms and conditions make it clear that the land was  purchased by Motappa in a public auction on payment of a  price for Rs.408.12.  In addition, the two authorities as well  as the High Court adverted to the revenue extract and  concluded that it was not a "granted land" and it was  purchased in a public auction on payment of a price.  In the  light of the factual conclusion, we are satisfied that the High  Court has rightly refused to quash the orders of the said  authorities and dismissed the writ petition.  If the factual

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finding that the subject-matter of the land was a "granted  land" undoubtedly it attracts bar under Section 4 of the Act  and follow the conditions as stated in Rule 43 (1) (5) and (8).  17)     In the light of the above conclusion, though Mr.  Altaf Ahmed, learned senior counsel heavily relied on the  decisions of this Court, namely, Manchegowda and Others  vs. State of Karnataka and Others, (1984) 3 SCC 301,  Siddegowda vs. Assistant Commissioner and Others,  (2003) 10 SCC 675, Guntaiah and Others vs. Hambamma  and Others, (2005) 6 SCC 228 and T. Mohd. Haneef vs.  Dy. Commissioner and Others, (2004) 13 SCC 90, in our  opinion, it would be of no help to the stand taken by him.   Hence, we refrain from elaborating the ratio laid down  therein.  18)     In the result, there is no merit in the appeal and the  same is dismissed.  However, in the facts and  circumstances of the case, there is no order as to costs.