R. Chandevarappa
Vs. State of Karnataka & Ors [1995] INSC 471 (8 September 1995)
Ramaswamy,
K. Ramaswamy, K. Hansaria B.L. (J)
CITATION:
1995 SCC (6) 309 JT 1995 (7) 93 1995 SCALE (5)620
ACT:
HEAD NOTE:
WITH CIVIL
APPEAL NOS. 8507, 8508 & 8510/95 OF 1995. (Arising out of SLP (C) Nos.
57/91, 11397/89 and 17011/90)
O R D
E R
Leave
granted.
We
have heard the counsel on both sides. The facts in the appeal No. 8507/95
arising out of SLP (C) No. 11571/89 are sufficient to dispose of all these
appeals by a common judgment, since common question of law arises for decision.
The
appellant's predecessor-in-title, Dasana Rangaiah Bin Dasaiah was granted on November 16, 1951 an extent of two acres of land in
Government vacant land bearing Survey No. 6 of Beekanahalli village, Chikmangalur
Taluk & District. The appellant claimed to have purchased the property from
the sons and widow of the assignee on October 16, 1968. On a representation made by one of
the sons on February
27, 1987 to the
Assistant Commissioner contending that the alienation was in violation of
Scheduled Castes and Scheduled Tribes Prohibition of Certain Lands Act, 1975.
The sale was set aside as violative of the Revenue Code Rule 43(5). The
appellant carried the matter in appeal. The appellate authority by its order
dated November 17, 1987 confirmed the same under Rule 43(5)
of the Revenue Code. In the writ petition and writ appeal, it was confirmed.
Thus the appeal against the order of the Division Bench dated June 23, 1989 made in W.A. No.950/89 by the High
Court of Karnataka at Bangalore.
Shri Ravi
P. Wadhwani, the learned counsel appearing for the appellant, has strenuously
contended, after good preparation that under the grant initially made to Dasana
Rangaiah Bin Dasaiah, the prohibition for alienation was only for ten years
and, therefore, by necessary implication the grantee thereafter, was free to
alienate the land. The alienation was made 17 years after the grant. Therefore,
the Tribunals and the High Court were not justified in setting aside the
alienation. It is also contended that the Act has no retrospective operation
and the alienation made prior to the Act has come into force cannot be set
aside under the Act. Further submission is that in any event the appellant
having remained in uninterrupted possession for more than 12 years he had
perfected his title by adverse possession. This contention was specifically
raised before the Assistant Commissioner and the appellate authority.
Therefore, the matter needs to be examined in the light of the law laid down by
this Court in K.T. Huchegowda v. Deputy Commissioner & Ors. [(1994) 3 SCC
536].
Shri Veerappa,
the learned counsel appearing for the State, contended that the cultivation
chit given to the original assignee was only for personal cultivation subject
to the condition that he will be eligible to encumber the land only to improve
the assigned land. But the prohibition for alienation of assigned land always
remained. The title always remained with the Government. Therefore, the limitation
would not run against the Government when the land was sold. Since it is in
contravention of Rule 43(5) of the Revenue Code, the appellant does not get any
title to the land. The question of adverse possession does not arise as against
the State since it was not pleaded that the appellant had asserted his title
against the State adversely. Therefore, the ratio in the above case has no
application and that the matter need not be remitted for consideration.
Having
given our anxious considerations to the respective contentions, the first
question that arises for determination is what would be the nature of the right
given to the assignee Dasana Rangaiah Bin Dasaiah. Article 39(b) of the
Constitution of India envisages that the State shall in particular direct its
policy towards securing that the ownership and control of the material
resources of the community are so distributed as best to subserve the common
good. Admittedly, Scheduled Castes and Scheduled Tribes are the weaker sections
of the society who have been deprived of their economic status by obnoxious
practice of untouchability and the tribes living in the forest area far away
from the civilised social life. To augment their economic status and to bring
them on par into the main stream of the society, the State with a view to
render economic justice envisaged in the Preamble and Articles 38 and 46 of the
Constitution distributed the material resources, namely, the land for
self-cultivation. It is an economic empowerment of the poor. It is common knowledge
that many a member of the deprived classes live upon the agriculture either by
cultivation on lease hold basis or as agricultural labour. Under these
circumstances, the State having implemented the policy of economic empowerment
to do economic justice assigned lands to them to see that they remain in
possession and enjoy the property from generation to generation.
In Murlidhar
Dayandeo Kesekar v. Vishwanath Pandu Barde & Anr. [JT (1995) 3 SC 563], the
question was whether permission for alienation under Bombay Revenue Code of the
lands belonging to the Scheduled Tribes could be granted and, if so, what
circumstances should be taken into consideration by the competent authority to
grant or refuse to grant permission. The authorities had refused to grant
permission for alienation by the scheduled tribes to the non-tribal. It was
challenged in the writ petition which was dismissed by the High Court. When the
matter came up to this court, it was held that the right to development is an
inalienable human right by virtue of which every human person is entitled to
participate in contribution to, and to enjoy economic, social, cultural and
political development, in which all human rights and fundamental freedoms can
be fully realised. All human rights derive from dignity and worth in man.
Democracy blossoms the person's full freedom to achieve excellence. The
socio-economic content in directive principles is all pervasive to make the
right to life meaningful to the Indian citizens. For national unity, equality of
status and dignity of persons envisaged in the Constitution, social and
economic reforms in a democracy are necessary. Welfare is a form of liberty
inasmuch as it liberates men from social conditions which narrow their choices
and brighten their self development. Article 46 of the Constitution mandates
the State to 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. Political democracy must be made a social democracy
as a way of life.
It recognises
and affords to realise liberty, equality and fraternity as the principles of
life. Economic empowerment, thereby, is the foundation to make equality of
status, dignity of person and equal opportunity a truism. Social revolution
through rule of law lies in effectuation of the fundamental rights and
directive principles a supplementary and complementary to each other. Political
democracy would stabilize socio-economic democracy to make it a way of life.
It
was, therefore, held that the State is enjoined to provide adequate means of
livelihood to the poor, weaker sections of the society, the dalits and tribes
and to distribute material resources of the community to them for common
welfare etc. Therefore, civil, political, social, economic and cultural rights
are necessary to the individual to protect and preserve human dignity, social
and economic rights are sine quanon concomitant to assimilate the poor, the
depressed and deprived, i.e., the dalits and tribes in the national main stream
for ultimate equitable society and democratic way of life to create unity,
fraternity among people in an integrated Bharat. Property is a legal
institution the essence of which is the creation and protection of certain
private rights in wealth of any kind.
Liberty, independence, self-respect, have
their roots in property. To denigrate the institution of property is to shut
one's eyes to the stark reality evidenced by the innate instinct and the steady
object of pursuit of the vast majority of people. The economic rights provide
man with freedom from fear and freedom from want, and that they are as
important if not more, in the scale of values. The effect of social and
economic legislation was held thus: "In fact, the cumulative effect of
social and economic legislation is to specify the basic structure. Moreover,
the social system shapes the wants and aspirations that its citizens come to have.
It determines in part the sort of persons they want to be as well as the sort
of persons they are. Thus an economic system is not only an institutional
device for satisfying existing wants and needs but a way of creating and
fashioning wants in the future. The economic empowerment, therefore, to the
poor, dalits and tribes as an integral constitutional scheme of socio-economic
democracy is a way of life of political democracy. Economic empowerment is,
therefore, a basic human right and a fundamental right as part of right to
live, equality and of status and dignity to the poor, weaker sections, dalits
and tribes." The Prohibition from alienation is to effectuate the
constitutional policy of economic empowerment under Articles 14, 21, 38, 39 and
46 read with the Preamble of the Constitution. Accordingly it was held that
refusal to permit alienation is to effectuate the constitutional policy. The
alienation was declared to be void under section 23 of the Contract Act being violative
of the constitutional scheme of economic empowerment to accord equality of
status, dignity of persons and economic empowerment.
It is
seen that the cultivation chit under which the assignee had come into
possession prescribes that the assignee should be in personal cultivation of
the land and that it should not be alienated. It is also stated that he is
empowered to encumber the land to secure loan to improve the assigned lands
either from the Government or from the Cooperative Society for bona fide
purpose of improving the land or for buying cattle or agricultural implements
for better cultivation of the land. That would clearly indicate the object of
assignment, namely, the assignee should remain in possession and cultivate the
land personally from generation to generation to augment economic status so as
to secure economic justice envisaged under the Preamble of the Constitution and
the Directive Principles.
The
question, therefore, is whether the alienation by the assignee in favour of the
appellant is valid in law.
Such
alienation obviously is opposed to public policy rendering the sale void under
Section 23 of the Contract Act. It is seen that Rule 43(5) of the Revenue Code
clearly prohibits alienation of assigned lands. The Division Bench of the High
Court in W.A. No.807 of 1987 titled Smt. Ammanamma v. Venkataiah & Ors. had
considered the effect of Rule 43(5) and held that once relevant rules prohibit
alienation of the property granted to depressed class for all times to come, it
cannot be got over by a grant made contrary to the statutory rules. Therefore,
prohibitory clause is absolute in its terms and that alone will govern the
rights of the parties. We are in agreement with the view taken by the High
Court.
The
question then is whether the appellant has perfected his title by adverse
possession. It is seen that a contention was raised before the Assistant
Commissioner that the appellant having remained in possession from 1968, he
perfected his title by adverse possession. But the crucial facts to constitute
adverse possession have not been pleaded. Admittedly the appellant came into
possession by a derivative title from the original grantee. It is seen that the
original grantee has no right to alienate the land.
Therefore,
having come into possession under colour of title from original grantee, if the
appellant intends to plead adverse possession as against the State, he must
disclaim his title and plead his hostile claim to the knowledge of the State
and that the State had not taken any action thereon within the prescribed period.
Thereby, the appellant's possession would become adverse. No such stand was
taken nor evidence has been adduced in this behalf. The counsel in fairness,
despite his research, is unable to bring to our notice any such plea having
been taken by the appellant.
This
Court has held that any alienation made contrary to the Act and the public
policy is not valid. In that behalf, this Court had adverted in paragraphs 8, 9
and 10 of the judgment as to when adverse possession of purchasers arises
against the depressed classes. In this case we are not concerned with the
situation as it had arisen in that case. Under those circumstances, the need to
remit the matter for reconsideration by the High Court does not arise.
The
appeals are accordingly dismissed. But in the circumstances, without costs.
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