Manchegowda Vs. State of Karnataka
[1984] INSC 81 (17 April 1984)
SEN, AMARENDRA NATH (J) SEN, AMARENDRA NATH
(J) BHAGWATI, P.N.
MISRA RANGNATH
CITATION: 1984 AIR 1151 1984 SCR (3) 502 1984
SCC (3) 301 1984 SCALE (1)632
CITATOR INFO :
R 1985 SC 389 (20) D 1988 SC1626 (15) R 1992
SC 195 (6)
ACT:
Karnataka Scheduled Castes and Scheduled
Tribes (Prohibition of Transfer of Certain Lands) Act, 1978, Sections 4 &
5, constitutional validity-Whether the prohibition of transfer of granted lands
and Resumption or restitution thereof without payment of compensation or
providing any appeal for such orders of resumption violates Art. 19 (1) (f), 31
and 31A of the Constitution-Whether making such special provisions only with
regard to Scheduled Castes and Scheduled Tribes to the exclusion of persons
belonging to other communities, violated Art. 14 of the Constitution.
HEADNOTE:
The petitioners are purchasers of lands which
had been originally granted by the State to persons belonging to Scheduled
Caste or Scheduled Tribes. Such lands had been originally granted to persons
belonging to Scheduled Castes and Scheduled Tribes under the provisions of Law
or on the basis of rules or regulations governing such grant. After the passing
of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer
of Certain Lands Act), 1978, notices have been issued by the appropriate
authority to the transferees of such lands to show cause as to why the lands
transferred to them should not be resumed for being restored to the original
grantees or their legal heirs or for distribution otherwise to the members of
Scheduled Castes and Scheduled Tribes in accordance with the provisions of the
Statute, as the transfers in their favour are in view of the provisions of the
Act now null and void. The appellants, who were aggrieved by the said notices,
challenged the vires of the Act. According to them, ss. 4 & 5 of the Act
violated the provisions of Arts 14, 19 (1) (f), 31 and 31A of the Constitution.
The High Court for reasons recorded in the Judgment upheld the validity of the
Act and dismissed the petitions. However, the High Court granted certificates
under Arts. 132 & 133 of the Constitution and hence the appeals.
Dismissing the appeals, the Court
HELD: 1 : 1. Sections 4 & 5 of the
Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfers of
Certain Lands) Act, 1978 is constitutionally valid. [5101F] 503 1 : 2. However,
the provisions of the Act must be read down and held that the Act will apply to
transfers of granted lands made in breach of the condition imposing prohibition
of transfer of granted lands only in those cases where the title acquired by
the transferee was still voidable at the date of the commencement of the Act
and had not lost its defeasible character at the date when the Act came into
force. Transferees of granted land having a perfected and not a voidable title
at the commencement of the Act must be held to be outside the pale of the
provisions of the Act. S. 4 of the Act must be so construed as not to have the
effect of rendering void the title of any transferee which was not voidable at
the date of the commencement of the Act. Granted lands which had been
transferred after the expiry of the period of prohibition do not come within
the purview of the Act, and cannot be proceeded against under the provisions of
this Act. The provisions of the Act make this position clear, as ss. 4 & 5
become applicable only when granted lands are transferred in breach of the
condition relating to prohibition of such lands. Granted lands transferred
before the commencement of the Act and not in contravention of prohibition on
transfer are clearly beyond the scope and purview of the present Act.
Also in case where granted lands had been
transferred before the commencement of the Act in violation of the condition
regarding prohibition on such transfer and the transferee who had initially
acquired only a voidable title in such granted lands had perfected his title in
the granted lands by prescription by long and continuous enjoyment thereof in
accordance with law before the commencement of the Act, such granted lands
would also not come within the purview of the present Act, as the title of such
transferees to the granted lands has been perfected before the commencement of
the Act.
Since at the date of the commencement of the
Act the title of such transferees had ceased to be voidable by reason of
acquisition of prescriptive rights on account of long and continued user for
the requisite period, the title of such transferees could not be rendered void
by virtue of the provisions of the Act without violating the constitutional
guarantee. [520D-H, 521A-C] 1 : 3. As the provisions of appeal has been
incorporated by the Amending Act which received the assent of the Governor on
the 29th February, 1984 and first came to be published in the Karnataka Gazette
Extraordinary on the 3rd day of March, 1984, the Deputy Commissioner to whom
the appeal will be presented will no doubt take this fact into consideration in
deciding the question of limitation in regard to any appeal which may be filed
against an order of the Assistant Commissioner; if any appeal is preferred
within a period of three months from the date the amended provision conferring
the right of appeal came into force, the Deputy Commissioner taking into
consideration the fact that a period of three months has been prescribed for
preferring an appeal from the date of the order of the Assistant Commissioner,
may have no difficulty in entertaining the appeal by condoning the deal under
s. 5 of the Limitation Act in terms of the power conferred on the Deputy
Commissioner under the said s. 5A, provided the Deputy Commissioner is
satisfied that the appeal is otherwise maintainable and the interest of justice
requires that the appeal should be entertained and not be thrown out on the
ground of limitation. [521-D-G] 504 1 : 4. It is no doubt true that before the
passing of the present Act any transfer of granted land in breach of the
condition relating to prohibition on such transfer would not have the effect of
rendering the transfer void and would make any such transfer only voidable. But
the State, consistently with the directive principles of the Constitution, has
made it a policy and very rightly, to preserve, protect and promote the
interest of the Scheduled Castes and Scheduled Tribes which by and large form
the weaker and poorer sections of the people in our country.
This may be said to be the declared policy of
the State and the provisions seeking to nullify such transfers is quite in
keeping with the policy of the State which may properly be regarded as public
policy for rendering social and economic justice to these weaker sections of
the society.
In pursuance of this policy, the legislature
is undoubtedly competent to pass an enactment providing that transfers of such
granted lands will be void and not merely voidable for properly safeguarding
and protecting the interests of the Scheduled Castes and Scheduled Tribes for
whose benefit only these lands had been granted. Even under the Contract Act,
any Contract which is opposed to public policy is rendered void. [512D-E,
513C-E] 1 : 5. Even in the absence of any such statutory provisions, the
transfer of granted lands in contravention of the terms of the grant or in
breach of any law, rule or regulation covering such grant will clearly be
voidable and the resumption of such granted lands after avoiding the voidable
transfers in accordance with law will be permitted.
Avoidance of such voidable transfers and
resumption of the granted lands through process of law is bound to take time
Any negligence and delay on the part of the authorities entitled to take action
to avoid such transfers through appropriate legal process of law is bound to
take time. Any negligence and dealy on the part of the authorities entitled to
take action to avoid such transfers through appropriate legal process for
resumption of such grant may be further impediments in the matter of avoiding
such transfers and resumption of possession of the granted lands. Prolonged
legal proceedings will undoubtedly be prejudicial to the interests of the
members of the Scheduled Castes and Scheduled Tribes for whose benefit the
granted lands are intended to be resumed. As transfers of granted lands in
contravention of the terms of the grant or any law, regulation or rule
governing such grants can be legally avoided and possession of such lands can
be recovered through process of law the Legislature for the purpose of avoiding
delay and harassment of protracted litigation and in furthering its object of
speedy restoration of these granted lands to the members of the weaker
communities is perfectly competent to make suitable provision for resumption of
such granted lands by stipulating in the enactment that transfers of such lands
in contravention of the terms of the grant or any regulation, rule or law
regulating such grant will be void in providing a suitable procedure consistent
with the principles of natural justice for achieving this purpose without
recourse to prolonged litigation in Court in the larger interests of benefiting
the members of the Scheduled Castes and Scheduled Tribes.
[513F-H, 514A-D] 2 : 1. Any person who
acquires such granted land by transfer from the original grantee in breach of
the condition relating to prohibition on such transfer must necessarily be
presumed to be aware of the prohibition imposed on the transfer of such granted
land, and they cannot be considered to be a 505 bona fide purchaser for value;
and every such transferee acquires to his knowledge only avoidable title to the
granted land. The title acquired by such transfer is defeasible and is liable
to be defeated by an appropriate action taken in this regard. If the
Legislature under such circumstances seek to intervene in the interests of
these weaker sections of the community and choose to substitute a speediest and
cheaper method or recovery of these granted lands which were otherwise liable
to be resumed through legal process, it cannot be said that any vested rights
of the transferees are affected. Transferees of granted lands with full
knowledge of the legal position that the transfers made in their favour in
contravention of the terms of grant or any law, rule or regulation governing
such grant are liable to be defeated in law, cannot and do not have in law or
equity, a genuine or real grievance that their defeasible title in such granted
lands so transferred is, in fact, being defeated and they are being
dispossessed of such lands from which they were in law liable to be dispossessed
by process of law. [514F-H, 515A-C] 2 : 2. The position will, however, be
somewhat different where the transferees have acquired such granted lands not
in violation of any term of the grant of any law regulating such grant as also
where any transferee who may have acquired a defeasible title in such granted
lands by the transfer thereof in contravention of the terms or the grant or any
law regulating such grant has perfected his title by prescription of time or
otherwise. [515C-D] 2 : 3. But where the transferee acquires only a defeasible
title liable to be defeated in accordance with law, avoidance of such
defeasible title which still remains liable to be defeated in accordance with
law at the date of commencement of the Act and recovery of the possession of
such granted land on the basis of the provisions contained in ss. 4 & 5 of
the Act cannot be said to be constitutionally invalid and such provision cannot
be termed as unconscionable, unjust and arbitrary. [515D-E] 3 : 1. Granted
lands were intended for the benefit and enjoyment of the original grantees who
happen to belong to the Scheduled Castes and Scheduled Tribes. 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 or property within the meaning of Art. 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. 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. 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, exploited by various persons who
could and would take advantage of 506 bona fide the said plight of these poor
persons for depriving them of their lands. The imposition of the condition of
prohibition on transfer for a particular 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.
[575G-H, 516A-B, E-F] 3 : 2. The transferees of the granted lands from the
original grantees, acquired the lands improperly and illegally in contravention
of the condition imposed on such transfers. Such transferees must have been
aware and must in any event be deemed to have been aware of the condition
regarding the prohibition on transfer and they cannot be considered to be bona
fide transferees for value. Such persons acquired in the granted lands only
avoidable title which was liable to be defeated and possession of such lands
could be resumed from such transferees. Such a person who only acquires a
defeasible legal right cannot make a grievance of any violation of Art. 19 (1)
(f) of the Constitution, when the defeasible legal right is, in fact, defeated
by appropriate legal action or by any suitable provision enacted in an Act
passed by the competent legislature. Further in most cases such transferees
have after the transfer, which is liable to be avoided in accordance with law,
enjoyed for a sufficiently long period the benefits of lands transferred to
them before the lands could be recovered from them Art. 19 (1) (f), therefore,
did not invalidate s. 4 of the Act. [516G-H, 517A-B] 3 : 3. The right or
property which a transferee acquires in the granted lands, is a defeasible
right and the transferee renders himself liable to lose his right or property
at the instance of the grantor. This kind of defeasible right of the transferee
in the granted lands cannot be considered to be property as contemplated in
art.
31 and 31A. The nature of the right of the
transferee in the granted lands on transfer of such lands in breach of the
condition prohibition relating to such transfer, the object of such grant and
the terms therefore, also the law governing such grants and the object and the
scheme of the presents Act enacted for the benefit of the weaker sections of
our community, clearly go to indicate that there is in this case no deprivation
of such right or property as may attract the provisions of Art. 31 and 31A of
the Constitution. [517C-G] With the enactment of the Act, the, voidable right
or title of the transferee in the grant lands becomes void and the transferee
is left with no right or property in the granted lands. The lands which are
sought to be recovered from the transferees of the granted lands are lands in
which the transferees cease to have any interest or property. The effect of the
provisions contained in ss. 4 & 5 of the Act is that the defeasible right
or interest of the transferees in the granted lands is defeated and the
voidable transaction is rendered void. As soon as such transferees are rendered
void by virtue of the provisions of the Act transferee does not have any right
in the granted lands so transferred, and possession is sought to be recovered
of such lands in which the transferees have lost their right and interest.
Therefore, the question of acquisition of any property by the State or any
modification or extinguishment of right of property does not really arise and
Art. 31A cannot be applied. Therefore, there is no infringement of Arts. 31
& 31A of the Constitution. [518D-H] 507
4. The special provisions made for the
resumption of granted lands originally granted to the members of Scheduled
Castes and Scheduled Tribes and resoration of the same to the original grantees
or their heirs and legal representatives and falling them to other members of
these communities do not infringe Art. 14 of the Constitution.
This Act has undoubtedly been passed for the
benefit of members of the Scheduled Castes and Scheduled Tribes who are
recognised as backward citizens and weaker sections in the country. There
cannot be any manner of doubt that persons belonging to Scheduled Castes and
Scheduled Tribes can be considered to be separate and distinct classes
particularly in the matter of preservation and protection of their economic and
educational interests. In view of the peculiar plight of these two classes, the
Constitution in Art. 15 (4) makes specific mention of these two classes and in
Art.16 (4) speaks of backward class of citizens. One of the directive
principles as contained in Art. 46 of the Constitution enjoins that "the
State shall promote with special care and educational and economic interests of
the weaker sections of the people and in particular of the Scheduled Castes and
Scheduled Tribes and shall protect them from social injustice and all forms of
exploitation." The object of this Act is to protect and preserve the
economic interests of persons belonging to Schedule Castes and Scheduled Tribes
and to prevent their exploitation. For the purpose of the present Act, the
classification has a clear nexus to the object sought to be achieved.
[519 A-F]
5. It is true there was no provision for any
appeal in the original Act. It may be that such a provision was not originally
made, as the Legislature might have felt that providing for an appeal would
unnecessarily prolong the proceedings and might defeat the purpose of the act.
However, the Karnataka Scheduled Castes and
Scheduled Tribes (Prohibition of Transfer of Certain Lands) (Amendment) Act,
1984 (Karnataka Act III of 1984) now provides a suitable provision for appeal
against an order of the Assistant Commissioner under s.5A. [519G-H, 520A]
CIVIL APPELLATE JURISDICTION : Civil Appeal
Nos. 3116 and 2608 of 1983 etc. etc.
(From the Judgments and orders dated 30th
September, 1982 & 5th October, 1981 of the Karnataka High Court in Writ
Petition Nos. 12680 and 12681/1979 etc. etc.
For the Appellants/Petitioners.
U.R. Lalit Shanti Bhushan, B.P. Singh, S.N.
Kacker, S.L. Benadikar and M/s. PR Ramassesh, KR Nagaraja, B.P.
Singh, M. Veerappa, N. Nettar & K N.
Bhat, C.R. Soma Sekharan, TVS Narasimhulu, Vineet Kumar, S. Laxminarasu, Swaraj
Kaushal, Mukul Mudgal, A.G. Ratnaparkhi, R. Satish, C.K. Ratnaparkhi, S.K.
Mehta, SS Javali, S.N. Bhat, Naunit Lal, Kailash Vasdev, Ms. Lalita Kohli,
Manoj Swarup, Ashok Benadikar, AG Ratnaparkhi For the Respondents:
R.P. Bhat, S.N. Kacker, L.N. Sinha, Swaraj
Kaushal, Girish Chander and Miss A. Subhashini.
The Judgment of the Court was delivered by
508 AMARENDRA NATH SEN, J. The question for consideration in Civil Appeal
No.3116 of 1983 by certificate granted by the High Court is, whether the
Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of
Certain Lands) Act, 1978 (hereinafter referred to as the Act for the sake of
brevity) is constitutionally valid or not.
The writ petition out of which this appeal
arises was filed in the High Court along with a number of other writ petitions
filed by various other parties challenging the validity of the Act. The High
Court for reasons recorded in the judgment upheld the validity of the Act and
dismissed this writ petition and also the other writ petitions. The High Court
granted certificate under Arts. 132 and 133 of the Constitution and this appeal
has been filed with the certificate granted by the High Court. As the identical
question is involved in all these appeals and special leave petitions, this
judgment will also dispose of all the appeals and special leave petitions.
In as much as the vires of the Act has been
challenged essentially on legal grounds, it does not become necessary for us to
set out the facts at any great length. The broad facts common to all writ
petitions which were filed in the High Court may, however, be briefly noted.
The Petitioners are purchasers of lands which had been originally granted by
the State to persons belonging to Scheduled Castes or Scheduled Tribes. Such
lands had been originally granted to persons belonging to Scheduled Castes and
Scheduled Tribes under the provisions of Law or on the basis of rules or
regulations governing such grant. After the passing of the Act in question
notices have been issued by the appropriate authority to the transferees of
such lands to show cause as to why the lands transferred to then should not be
resumed for being restored to the original grantees or their legal heirs or for
distribution otherwise to the members of Scheduled Castes and Scheduled Tribes
in accordance with the provisions of the Statute, as the transfers in their favour
are in view of the provisions of the Act now null and void.
Before we proceed to deal with the various
contentions raised on behalf of the appellant and the other petitioners in the
other writ petitions, it would be appropriate to set out the relevant
provisions of the Act.
Granted land is defined in S. 3(b) of the
mean "any land granted by the Government to a person belonging to any of
the 509 Scheduled Castes or the Scheduled Tribes and includes land allotted or
granted to such person under the relevant law for the time being in force
relating to agrarian reforms or land ceiling or abolition of Inams, other than
that relating to hereditary offices or rights and the word "granted shall
be construed accordingly".
Sections 4 and 5 of the Act read as follows:
"S. 4. Prohibition of transfer of
granted land-(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 or 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-section (1) and (2)
shall apply also to the sale of any land in execution of a decree or order of a
civil Court or any award or order of any other authority.
S.5. Resumption or restitution of granted
lands.- (1) Where, on application by any interested person or on information
given in writing by any person or suo motu, and after such enquiry as he deems
necessary, the Assistant Commissioner is satisfied that the transfer of any
granted land is null and void under sub-section (1) of Section 4, he may.- (a)
by order take possession of such land after evicting all persons in possession
thereof in such manner as may be prescribed:
Provided that no such order shall be made
except after giving the person affected a reasonable opportunity of being
heard;
(b) restore such land to the original grantee
or his legal heir. Where it is not reasonably practicable to restore the land
to such grantee or legal heir, such land shall be deemed to have vested in the
government free from all encumbrances. The Government may grant such 510 land
to a person belonging to any of the Scheduled Caste or Scheduled Tribes in
accordance with the rules relating to grant of land.
(2) Any order passed under sub-section (1)
shall be final and shall not be questioned in any court of law and no
injunction shall be granted by any court in respect of any proceeding taken or
about to be taken by the Assistant Commissioner in pursuance of any power
conferred by or under this Act.
(3) For the purposes of this section, where
any granted land is in the possession of a person, other than the original
grantee or his legal heir, it shall be presumed, until the contrary is proved,
that such person has acquired the land by a transfer which is null and void
under the provisions of sub-section (1) of section 4.
The validity of the Act has been challenged
mainly because of the provisions contained in ss. 4 and 5 of the Act which
purport to declare transfers 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 null and void and confer powers on the
authority to take possession of such land after evicting all persons in
possession thereof and to restore such lands to the original grantee or his
legal heirs and where it is not reasonably practicable to so restore the land
to a person belonging to the Scheduled Castes or Scheduled Tribes in accordance
with the rules relating to the grant of such land it may be noted that the
validity of the Act in so far as it imposes prohibition on transfer of granted
land after the commencement of the Act has not been challenged and the
principal objection to the validity of the Act is taken because of the
provisions in the Act seeking to nullify the transfers of granted lands
effected before the commencement of the Act.
The main grounds on which the validity of the
Act has been challenged are:
1. Granted lands which had been transferred
by the grantee in contravention of the prohibition imposed on the transfer of
any granted land under the terms of the grant, under the rules relating to such
grant or under any law governing such grant, renders the transfer voidable and
not void and it is not permissible to nullify such transfers and to declare
them void by any provisions of the Act;
511
2. The power conferred on the authority to
recover possession of the granted land on the basis of the provisions contained
in the Act defeating the vested rights of the purchasers who have acquired such
lands bona fide for consideration and have been in enjoyment and possession
thereof for years is unconscionable unjust and invalid;
3. Ss. 4 and 5 of the Act which empower the
authority to take possession of the granted lands without payment of any
compensation are violative of Art.
19(1)(f) of the Constitution.
4. Ss. 4 and 5 of the Act contravene Art. 31
and the second proviso of cl. (1) of Art. 31A of the Constitution and are,
therefore, void.
5. Invalidation of transfers of land granted
to persons belonging to only scheduled castes and scheduled tribes and
resumption of only such granted lands are discriminatory and they infringe Art.
14 of the Constitution.
It may be noted that these very grounds were
urged before the High Court. The High Court has carefully considered all the
arguments advanced on behalf of the appellants who were the petitioners in the
writ petitions filed before it. The High Court in its judgment has referred to
the relevant rules governing the grant and has also discussed the various
decisions which were cited before it.
The High Court for reasons stated in the
judgment negatived all the contentions and upheld the validity of the Act. We
may mention that in addition to the aforesaid grounds a further ground has also
been urged before us and the said ground is that as the Act in question does
not provide for an appeal against the order of the competent authority, the Act
should be held to be unreasonable, unjust and unconscionable and should,
therefore, be struck down.
Before we proceed to examine the contentions
raised before us, it will be appropriate to refer to the objects and reasons
for the passing of this particular enactment.
The objects and reasons run as follows:
512 "The non-alienation clause contained
in the existing Land Grant Rules and the provisions for conciliation 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 purpose of the grant, the land
even if it has been alienated, should be restored to the original grantee or
his heirs.
The Government of India has also been urging
the State Government for enacting a legislation to prevent alienation of lands
granted to Scheduled Castes and Scheduled Tribes by Government on the lines of
the model legislation prepared by it and circulated to the State
Government".
It is no doubt true that before the passing
of the present Act any transfer of granted land in breach of the condition
relating to prohibition on such transfer would not have the effect of rendering
the transfer void and would make any such transfer only voidable. The present
Act seeks to introduce a change in the legal position. The prohibition or
transfer of granted land had been imposed by law, rules or regulations
governing such grant or by the terms of the grant. The relevant provisions
imposing such prohibition by rules, regulations and laws have been referred to
in the judgment of the High Court. It is quite clear that the condition
regarding prohibition of transfer of granted land had been introduced in the
interest of the grantees for the purposes of upkeep of the grants and for
preventing the economically dominant sections of the community from depriving
the grantees who belong to the weaker sections of the people of their enjoyment
and possession of these lands and for safeguarding their interests against any
exploitation by the richer sections in regard to the enjoyment and possession
of these lands granted essentially for their benefit. As the Statement of
Objects and Reasons indicates, this, prohibition on transfer of granted land
has not proved to be a sufficiently strong safeguard in the matter of
preserving grants in the hands of the grantee 513 belonging to the Scheduled
Castes and Scheduled Tribes; and in violation of the prohibition on transfer of
the granted land, transfers of such lands on a large scale to the serious
detriment of the interests of these poorer sections of the people belonging to
the Scheduled Castes and Scheduled Tribes had taken place. In view of this
unfortunate experience the Legislature in its wisdom and in pursuance of its
declared policy of safeguarding, protecting and improving the conditions of
these weaker sections of the community, thought it fit to bring about this
change in the legal position by providing that any such transfer except in
terms of the provisions of the Act will be null and void and not merely
voidable. The Legislature no doubt is perfectly competent in pursuance of the
aforesaid policy to provide that such transactions will be null and void and
not merely voidable. Even under the Contract Act any contract which is opposed
to public policy in rendered void. The State, consistently with the directive
principles of the Constitution, has made it a policy and very rightly, to
preserve, protect and promote the interests of the Scheduled Castes and
Scheduled Tribes which by and large form the weaker and poorer sections of the
people in our country.
This may be said to be the declared policy of
the State and the provision seeking to nullify such transfers is quite in
keeping with the policy of the State which may properly be regarded as public
policy for rendering social and economic justice to these weaker sections of
the society.
In pursuance of this policy, the Legislature
is undoubtedly competent to pass an enactment providing that transfers of such
granted lands will be void and not merely voidable properly safeguarding and
protecting the interests of the Scheduled Castes and Scheduled Tribes for whose
benefit only these lands had been granted. Even in the absence of any such
statutory provisions, the transfer of granted lands in contravention of the
terms of the grant or in breach of any law, rule or regulation covering such
grant will clearly be voidable and the resumption of such granted lands after
avoiding the voidable transfers in accordance with law will be permitted.
Avoidance of such voidable transfers and resumption of the granted lands
through process of law is bound to take time. Any negligence and delay on the
part of the authorities entitled to take action to avoid such transfers through
appropriate legal process for resumption of such grant may be further
impediments in the matter of avoiding such transfers and resumption of
possession of 514 the granted lands. Prolonged legal proceedings will
undoubtedly be prejudicial to the interests of the members of the Scheduled
Caste and Scheduled Tribe for whose benefit the granted lands are intended to
be resumed. As transfers of granted lands in contravention of the terms of the
grant or any law, regulation or rule governing such grants can be legally
avoided and possession of such lands can be recovered through process of law,
it must be held that the Legislature for the purpose of avoiding delay and
harassment of protracted litigation and in furthering its object of speedy
restoration of these granted lands to the members of the weaker communities is
perfectly competent to make suitable provision for resumption of such granted
lands by stipulating in the enactment that transfers of such lands in
contravention of the terms of the grant or any regulation, rule or law regulating
such grant will be void and in providing a suitable procedure consistent with
the principles of natural justice for achieving this purpose without recourse
to prolonged litigation in Court in the larger interests of benefiting the
members of the Scheduled Castes and Scheduled Tribes.
We my note that the competence of the
Legislature to declare any transfer of granted land in contravention of the
terms of grant of such land or any rule, regulation or law providing for such
grant or without the previous permission of the Government in case 1 of
transfers after the passing of the Act has not been seriously disputed and
cannot possibly be disputed.
What has been strongly urged before us is
that the provisions contained in S. 4 in so far as the same seek to nullify
transfers effected before the Act had come into force, are invalid.
Any person who acquires such granted land by
transfer from the original grantee in breach of the condition relating to
prohibition on such transfer must necessarily be presumed to be aware of the
prohibition imposed on the transfer of such granted land. Anybody who acquires
such granted land in contravention of the prohibition relating to transfer of
such granted land cannot be considered to be a bona fide purchaser for value
and every such transferee acquires to his knowledge only a voidable title to
the granted land. The title acquired by such transfer is defeasible and is
liable to be defeated by an appropriate action taken in this regard. If the
Legislature under such circumstances seek to intervene in the interests of
these weaker sections of the community 515 and choose to substitute a speedier
and cheaper method of recovery of these granted lands which were otherwise
liable to be resumed through legal process, it cannot, in our opinion, be said
that any vested rights of the transferees are affected. Transferees of granted
lands with full knowledge of the legal position that the transfers made in
their favour in contravention of the terms of grant or any law, rule or regulation
governing such grant are liable to be defeated in law, cannot and do not have
in law or equity, a genuine or real grievance that their defeasible title in
such granted lands so transferred is, in fact, being defeated and they are
being dispossessed of such lands from which they were in law liable to be
dispossessed by process of law. The position will however, be somewhat
different where the transferees have acquired such granted lands not in
violation of any term of the grant or any law regulating such grant as also
where any transferee who may have acquired a defeasible title in such granted
lands by the transfer thereof in contravention of the terms of the grant or any
law regulating such grant has perfected his title by prescription of time or otherwise.
We shall consider such cases later on. But where the transferee acquires only a
defeasible title liable to be defeated in accordance with law, avoidance of
such defeasible title which still remains liable to be defeated in accordance
with law at the date of commencement of the Act and recovery of possession of
such granted land, on the basis of the provisions contained in s. 4 and s. 5 of
the Act cannot be said to be constitutionally invalid and such a provision
cannot be termed as unconscionable, unjust and arbitrary. The first two
contention raised on behalf of the petitioners are, therefore, overruled.
The next contention that Ss. 4 and 5 of the
Act empowering the authority to take possession of the granted lands without
payment of any compensation are violative of Art. 19(1)(f) of the Constitution
is without any merit. Art. 19(1)(f) which was in force at the relevant time
provided that all citizens shall have the right "to acquire, hold and
dispose of property." 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 516 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 Art. 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, 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 particular 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.
The transferees of the granted lands from the
original grantees, acquired the lands improperly and illegally in contravention
of the condition imposed on such transfers.
Such transferees must have been aware and
must in any event be deemed to have been aware of the condition regarding the
prohibition on transfer and they cannot be considered to be bona fide
transferees for value. Such persons acquired in the granted lands only a
voidable title which was liable to be defeated and possession of such lands
could be resumed from such transferees. Such a person who only acquires a
defeasible legal right cannot make a grievance 517 of any violation of Art.
19(1)(f) of the Constitution, when the defeasible legal right is, in fact,
defeated by appropriate legal action or by any suitable provision enacted in an
Act passed by the competent legislature. It may further be noted that in most
cases such transferees have after the transfer, which is liable to be avoided
in accordance with law, enjoyed for a sufficiently long period the benefits of
lands transferred to them before the lands could be recovered from them. Art.
19(1)(f), therefore, did not invalidate S. 4 of the Act.
We have earlier noticed that the title which
is acquired by a transferee in the granted lands, transferred in contravention
of the prohibition against the transfer of the granted lands, is a voidable
title which in law is liable to be defeated through appropriate action and
possession of such granted lands transferred in breach of the condition of
prohibition could be recovered by the grantor. The right or property which a
transferee acquires in the granted lands, is a defeasible right and the
transferee renders himself liable to lose his right or property at the instance
of the grantor. We have further observed that by the enactment of this Act and
particularly s. 4 and s. 5 thereof the Legislature is seeking to defeat the
defeasible right of the transferee in such lands without the process of a
prolonged legal action with a view to speedy resumption of such granted lands
for distribution thereof the original grantee or their legal representatives
and in their absence to other members of the Scheduled Castes and Scheduled
Tribes Communities. In our opinion, this kind of defeasible right of the
transferee in the granted lands cannot be considered to be property as
contemplated in Art. 31 and 31-A. The nature of the right of the transferee in
the granted land on transfer of such lands in breach of the condition of
prohibition relating to such transfer, the object of such grant and the terms
thereof, also the law governing such grants and the object and the scheme of
the present Act enacted for the benefit of weaker sections of our community,
clearly go to indicate that there is in this case no deprivation of such right
or property as may attract the provisions of Arts 31 and 31-A of the
Constitution.
In the case of Amar Singh v. Custodian,
Evacuee Property, Punjab(1), this Court while considering the provisions of
Administration of Evacuee Property Act 1950 (XXXI of 1950) and the nature of
right in the property allotted to a quasi-permanent 518 allottee held that the
interests of a quasi-permanent allottee did not constitute property within the
meaning of Art. 19(1)(f), 31(1) and 31(2) of the Constitution. This Court
observed at p. 834:
"Learned counsel for the Petitioners has
strenuously urged that under the quasi-permanent allotment scheme the allottee
is entitled to a right to possession within the limits of the relevant
notification and that such right to possession is itself 'property'. That may
be so in a sense. But it does not affect the question whether it is property so
as to attract the protection of fundamental rights under the Constitution. If
the totality of the bundle of rights of the quasi-permanent allottee in the
evacuee land constituting an interest in such land, is not property entitled to
protection of fundamental rights, mere possession of the land by virtue of such
interest is not on any higher footing".
With the enactment of the Act, voidable right
or the title of the transferee in the granted lands becomes void and the
transferee is left with no right or property in the granted lands. The lands
which are sought to be recovered from the transferees of the granted lands are
lands in which the transferees cease to have any interest or property. The
effect of the provisions contained in Ss. 4 and 5 of the Act is that the
defeasible right or interest of the transferees in the granted lands is
defeated and the voidable transaction is rendered void. We have earlier held
that it is clearly open to the Legislature to declare void the transfers of
granted lands in contravention of the condition of prohibition on transfer. As
soon as such transfers are rendered void by virtue of the provisions of the
Act, the transferee does not have any right in the granted lands so
transferred, and possession is sought to be recovered of such lands in which
the transferees have lost their right and interest. Therefore, the question of
acquisition of any property by the State or any modification or extinguishment
of right of property does not really arise and Art. 31-A cannot be applied. We
are, therefore, of the opinion that there is no infringement of Art. 31 and
Art. 31-A of the Constitution. We may further observe that this aspect has been
carefully and elaborately considered by the learned Judges of the High Court
while holding that Arts. 31 and 31- A are not violated.
519 The next contention urged is that Ss. 4
and 5 of the Act, are violative of Art. 14 of the Constitution inasmuch as
these sections make special provisions only with regard to Scheduled Castes and
Scheduled Tribes to the exclusion of persons belonging to other Communities.
This Act has undoubtedly been passed for the benefit of members of the
Scheduled Castes and Scheduled Tribes who are recognised as backward citizens
and weaker sections in the country. There cannot be any manner of doubt that
persons belonging to Scheduled Castes and Scheduled tribes can be considered to
be separate and distinct classes particularly in the matter of preservation and
protection of their economic and educational interests. In view of the peculiar
plight of these two classes, the Constitution in Art. 15(4) makes specific
mention of these two classes and in Art. 16(4) speaks of backward class of
citizens. One of the directive principles as contained in Art. 46 of the
Constitution enjoins that "the State shall promote with special care the
educational and economic interests of the weaker sections of the people and in
particular of the Scheduled Castes and Scheduled Tribes and shall protect them
from social injustice and all forms of exploitation." The object of this
Act is to protect and preserve the economic interests of persons belonging to
Scheduled Castes and Scheduled Tribes and to prevent their exploitation. For
the purpose of the present Act, the classification has clear nexus to the
object sought to be achieved. We are, therefore, of the opinion, that special
provisions made for the resumption of granted lands, originally granted to the
members of Scheduled Castes and Scheduled Tribes and resoration of the same to
the original grantees or their heirs and legal representatives and failing them
to other members of these communities do not infringe Art. 14 of the
Constitution.
The last contention raised is that the Act
should be considered to be unjust and unreasonable as no provision has been
made for any appeal against the order of the authority concerned. It is true
that there was no provision for any appeal in the original Act. It may be that
such a provision was not originally made, as the Legislature might have felt
that providing for an appeal would unnecessarily prolong the proceedings and
might defeat the purpose of the Act. In course of the hearing, the learned
Counsel for the State had however submitted that in the interest of justice a
provision regarding appeal would be incorporated in the Act by an appropriate
amendment of the Act. It has subsequently been 520 brought to our notice that
by the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer
of Certain Lands) (Amendment) Act, 1984 (Karnataka Act 3 of 1984) which
received the assent of the Governor on the 29th day of February, 1984 and came
to be published in the Karnataka Gazette Extraordinary on the 3rd of March,
1984, a suitable provision for appeal against an order of the Assistant
Commissioner has been made in S. 5A which has been incorporated by the Amending
Act. We have had some doubt whether lack of provision for an appeal in an
enactment of this kind would have infected the Act with the vice of procedural
unreasonableness and would have affected the Constitutional validity of the
Act. As, however, a suitable provision for an appeal against the order of the
Assistant Commissioner has been made by the Amending Act, this question does
not survive to require any further consideration and it does not become
necessary for us to make any final pronouncement on it.
Though we have come to the conclusion that
the Act is valid, yet, in our opinion, we have to make certain aspects clear.
Granted lands which had been transferred after the expiry of the period of
prohibition do not come within the purview of the Act, and cannot be proceeded
against under the provisions of this Act. The provisions of the Act make this
position clear, as ss. 4 and 5 become applicable only when granted lands are
transferred in breach of the condition relating to prohibition on transfer of
such granted lands. Granted lands transferred before the commencement of the
Act and not in contravention of prohibition on transfer are clearly beyond the
scope and purview of the present Act. Also in case where granted lands had been
transferred before the commencement of the Act in violation of the condition
regarding prohibition on such transfer and the transferee who had initially
acquired only a voidable title in such granted lands had perfected his title in
the granted lands by proscription by long and continuous enjoyment thereof in
accordance with law before the commencement of the Act, such granted lands would
also not come within the purview of the present Act, as the title of such
transferees to the granted loads has been perfected before the commencement of
the Act. Since at the date of the commencement of the Act the title of such
transferees had ceased to be voidable by reason of acquisition of prescriptive
rights on account of long and continued user for the 521 requisite period; the
title of such transferees could not be rendered void by virtue of the
provisions of the Act without violating the constitutional guarantee. We must,
therefore, read down the provisions of the Act by holding that the Act will
apply to transfers of granted lands made in breach of the condition imposing
prohibition on transfer of granted lands only in those cases where the title acquired
by the transferee was still voidable at the date of the commencement of the Act
and had not lost its defeasible character at the date when the Act came into
force.
Transferees of granted lands having a
perfected and not a voidable title at the commencement of the Act must be held
to be outside the pale of the provisions of the Act. S. 4 of the Act must be so
construed as not to have the effect of rendering void the title of any
transferee which was not voidable at the date of the commencement of the Act.
We may further observe that as the provision
of appeal has been incorporated by the Amending Act which received the assent
of the Governor on the 29th day of February, 1984 and first came to be
published in the Karnataka Gazette Extraordinary on the 3rd day of March; 1984,
the Deputy Commissioner to whom the appeal will be presented will no doubt take
this fact into consideration in deciding the question of limitation in regard
to any appeal which may be filed against an order of the Assistant Commissioner;
if any appeal is preferred within a period of three months from the date the
amended provision conferring the right of appeal came into force, the Deputy
Commissioner taking into consideration the fact that a period of three months
has been prescribed for preferring an appeal from the date of the order of the
Assistant Commissioner, may have no difficulty in entertaining the appeal by
condoning the delay under S. 5 of the Limitation Act in terms of the power
conferred on the Deputy Commissioner under the said Section 5A, provided the
Deputy Commissioner is satisfied that the appeal is otherwise maintainable and
the interest of justice requires that the appeal should be entertained and not
be thrown out on the ground of limitation.
With these observations we dismiss the
appeals and the Special Leave Petitions with no order as to costs.
S.R. Appeals & Petitions dismissed.
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