Hutchegowda and Others vs The Deputy Commissioner, Hassan and Others

The short question that arises for consideration in this writ petition is whether the Assistant Commissioner has power to review his own order under Sections 4 and 5 of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 (''the Act'' for short).

The matter arises this way:

Mallaiah, respondent-3 was granted five acres of land in Sy. No. 346 of Kankere village, Gandasi Hobli, Arasikere Taluk, Hassan District, by the competent authority in proceedings No. DE.PDR. 57/43-44 and a saguvali chit also came to be issued to him on 15-10-1944 under the Mysore Land Grant Rules framed under the Mysore Land Revenue Act subject to certain conditions one of which was that the grantee shall not alienate the granted land at any time.

By a perusal of the records and the impugned orders, it is clear that despite such a prohibition was imposed in the grant of land, on 21-4-1959 the land was mortgaged and thereafter sold under a registered sale deed dated 26-3-1969 in favour of petitioners 1 to 3 for valuable consideration. Thus, the petitioners have been in possession and enjoyment of the respective portions purchased by them.

After coming into force of the Act, suo motu action was taken by the Assistant Commissioner, respondent-2 herein. He initiated proceedings in No. Ask. 290/80-81, issued show cause notice to the petitioners calling upon them why action should not be taken to declare the alienations as null and void, held an enquiry thereafter, adjourned the case from time to time from 9-9-1981 to 15-10-1981 and finally on 15-10-1991 made an order declaring the alienations as null and void on the ground that the alienations were made contrary to the condition of the grant and directing possession of the land in favour of respondent-3.

It is very interesting to note that that order made on 15-10-1981 by then Assistant Commissioner was not executed for the reasons best known to him till 26-9-1989 when the present incumbent passed a fresh order revising the earlier order, but concluding to the same effect. The subsequent order is challenged in this petition at Annexure-A.

The appeal filed against this order was also dismissed by the Deputy Commissioner. Hence this petition.

Considering the question that arises in this petition, having regard to the object sought to be achieved under the Act and the provisions of the Act in particular Sections 4 and 5 under which the Assistant Commissioner is competent only to declare an alienation as null and void and restore the land in favour of the grantee, if it is made in contravention of the condition of the grant made either before or after coming into force of the Act and the Rules framed thereunder, I am of the opinion that the Assistant Commissioner cannot review his own order in the absence of enabling provision to do so. Further, the intendment of the legislature as can be gathered from the preamble of the Act is clear as not to confer such power on the Assistant Commissioner. This is one aspect. The other aspect is that why the order made on 15-1.0-1981 nullifying the alienations and directing restoration of the granted land in favour of the original grantee was not executed till it was revised on 26-9-1989, cannot be understood. Unfortunately, even the Deputy Commissioner, who is the supervising authority over the entire District, failed to take action to comply with the object of the Act. Thus, there is failure of justice in not executing the order for ten years resulting in denying respondent-3-grantee the fruits of the order made in his favour. The delay on the part of the executing authority must be deprecated.

Now we have to see what happens by the revision of the order. As I have already observed, the finality of the earlier order as well as the order impugned herein at Annexure-A is one and the same. In both of them, the alienations are invalidated. Whether the conclusion as to nullification of the alienations is correct has to be examined. Admittedly, the land in question was granted in favour of the petitioner in the year 1945 subject to the condition that the land shall not be alienated at any lime to anybody. Rule 43(8) as it stood originally of the Land Grant Rules operative on the date of grant also prescribes the condition not to alienate the land if granted to the persons belonging to depressed class. Despite such a condition in the grant, the granted land was sold in favour the petitioners. Therefore, the authorities below rightly declared the transfers as null and void under the Act and directed restoration of the land to respondent-3. I do not see any valid ground to interfere with the said conclusion reached by the authorities below.

In the circumstances, though I find fault with the revision, I do not think it necessary to quash the orders impugned herein.

In view of what is discussed above, I need not go into other legal contentions urged.

In the result, this writ petition fails and is dismissed.

However, before parting with this case, on the submission made by the learned counsel for the petitioner that the petitioners being in continuous possession of the lands purchased by them, have raised certain crops which will be ready for harvest in a couple of months and that therefore they may be permitted to harvest the crop. I direct the Assistant Commissioner to permit the petitioners to harvest the crops, if any, on the land not later than 31-12-1991 before any action is taken to evict them from the land. No costs. However, they shall not cause any damage to the standing coconut trees on the land. The Assistant Commissioner is further directed to draw a mahazar indicating the improvements made to the lands by the petitioners.

Sri M. Siddagangaiah, learned High Court Government Pleader, is permitted to file his memo of appearance for respondents-1 and 2 within two weeks.