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CASE NO.: Appeal (civil)  7039 of 2001

PETITIONER: Chinde Gowda

RESPONDENT: Puttamma

DATE OF JUDGMENT: 14/12/2007

BENCH: Dr. ARIJIT PASAYAT & P. SATHASIVAM

JUDGMENT: JUDGMENT

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 \023Act 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 appellant\022s 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

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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  respondent\022s 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  & Ors.  Vs. Hambamma & Ors. (2005 (6) SCC 228). In para 14  it was stated as follows:   \02314. 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

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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)  \02317. 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,

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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.\024    7.      In view of the aforesaid decision, this appeal is without  merit and dismissed.  There shall be no order as to costs.