Guntaiah
& Ors Vs. Hambamma & Ors [2005] Insc 361 (22 July 2005)
K.G.
Balakrishnan & P. Venkatarama Reddi
WITH CIVIL
APPEAL NOS. 6044-6047/1998 K.G. BALAKRISHNAN, J.
All
these appeals have been filed against the common Judgment passed by the Full
Bench of the Karnataka High Court in five Writ Appeals.
Under
the Mysore Land Revenue (Amendment Rules), 1960 [hereinafter being referred to
as "Rules of 1960"], certain lands were granted to members of
Scheduled Castes and Scheduled Tribes. Initially, these lands were given to
them on temporary lease and later by virtue of Rule 43-J of Rules of 1960,
these lands were given to them permanently with a restriction that the grantees
shall not alienate these lands to third parties for a period of 15 years. These
lands were granted to them during the period 1959-65. The Karnataka Scheduled
Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands), Act,
1978 [hereinafter being referred to as "Act 2 of 1979"] came into
force on 1.1.1979. Section 4 of this Act is to the effect that 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, shall be null and void and no right, title or interest on such land
shall be conveyed nor be deemed ever to have conveyed by such transfer. The
persons who obtained grant of Government land, contrary to the condition
regarding alienation, transferred the properties to third parties. In some
cases, even the transferees had effected further transfer of such lands to
others. Section 5 of Act 2 of 1979 empowers the Assistant Commissioner to pass
appropriate orders for restoration of the land to the original allottee in case
any transfer was effected contrary to Section 4 of the Act. Section 5 of Act 2
of 1979 provides that an Assistant Commissioner, on application by any
interested persons or on information given in writing by any person, or suo-motu,
after such inquiry, if he is satisfied that the transfer of any granted land is
null and void as provided under sub-Section (1) of Section 4, may by order,
take possession of such land after giving a reasonable opportunity of being
heard to the person evicted, and restore the land to the original allottee.
An
appeal also is provided against the order passed by the Assistant Commissioner.
Section 11 of Act 2 of 1979 further states that Act 2 of 1979 shall have
overriding effect over the other laws.
In all
these cases, the original allottees who were either scheduled castes or
scheduled tribes transferred the property to third parties without obtaining
previous permission of the Government. Later, the original allottees or their
successors-in-interest filed applications before the Assistant Commissioner
praying for restoration of lands which were transferred contrary to Section 4
of Act 2 of 1979. The Assistant Commissioner after conducting inquiry in these
cases held that all the transfers were null and void and directed restoration
of possession to the original grantees. The affected parties filed appeals and
those appeals were dismissed by the appellate authority. Those orders were
challenged before the High Court and the learned Single Judge confirmed the
orders passed by the appellate authority. Aggrieved by the Judgment of the
learned Single Judge, Writ Appeals were filed which came up before the Division
Bench.
An
argument was canvassed on behalf of the transferees of such lands that the
lands in all these cases were granted under Rule 43-J of Rules of 1960 and as
it is not specifically provided under Rule 43-J that there shall be any
restriction on alienation, the restriction imposed was not valid or
enforceable. The Division Bench of the High Court thought it fit to refer the
matter to the Full Bench as certain conflicting opinions were expressed by
different Benches of the same High Court. The relevant portion of the reference
order was to the following effect:- "One of the important questions that
arises for consideration in these Writ Appeals is as to whether an Authority
granting land under Rule 43-J of Mysore Land Revenue (Amendment) Rules, 1960
can impose any condition at the time of making grant that the grantee, shall
not alienate the land for a period of 15 years when Rule 43-J do not provide
for any such condition. A further question also arisesp on the effect of a
condition imposed in the Saguvali chit by the Tahsildar that the grantee shall
not alienate the land for a period of 15 years when such condition was not
imposed by the order of the Authority making the grant." The Full Bench
held that in all these cases the lands were allotted under Rule 43-J and,
therefore, there should not have been any condition restricting the alienation
by the grantees. The Full Bench also held that the conditions stipulated in
Rule 43-G were not applicable to the grants made under Rule 43-J and,
therefore, the conditions imposed by the Tahsildar in the 'Saguvali chit'
restricting the alienation of such lands by the grantee was not sustainable in
law. Aggrieved by the said decision, the State as well as the affected parties have
filed these appeals.
We
heard the appellant's Counsel and learned Counsel for the respondents.
In
order to appreciate the contentions urged before us by the parties on either
side, it is necessary to go into some of the relevant provisions contained in
the Rules of 1960. These Rules of 1960 were intended to regulate the allotment
of the Government lands to certain category of persons. As regards grant of
lands, the Revenue Officers are given certain powers. The Tahsildar to whom the
power of Deputy Commissioner has been delegated may grant not exceeding two
acres of rain-fed wet land or four acres of dry land, provided the market value
of such land including the value of the trees thereon does not exceed three
hundred rupees. The Assistant Commissioner in-charge of the taluk is also given
power to grant land not exceeding two acres of land fit for garden cultivation
or wet land with assured irrigation facilities. Rule 43 provides the format of
the application form for grant of land for cultivation. Rule 43-B states that
no land with more than twenty-five reserved trees in an acre shall be disposed
of for cultivation except under the special orders of Government. Rule 43-C and
Rule 43-D give certain preference to individual who is poor or bona fide
agriculturist, political sufferer, etc. It also provides that lands which are
in control of the Revenue Department may be leased out to the schools, colleges
and the training institutions and also to farming societies registered under
the Karnataka Co-operative Societies Act. Rule 43-E says that the lands
available for disposal in a village shall be reserved, for grant to different
categories of persons eligible for such grant, and where a land available for disposal
in any village is less than ten acres, the entire lands available shall be
reserved for grant to applicants belonging to the Scheduled Castes and
Scheduled Tribes who are ordinarily resident in the village. Where the extent
of land available for disposal in a village is more than ten acres, a minimum
of ten acres shall be reserved for grant to applicants belonging to Scheduled
Castes and Scheduled Tribes. Rule 43-F prescribes the order of priority and the
extent of land to be granted.
Marginal
note to Rule 43-G says that the grant of land under the preceding rules shall
be subject to certain conditions. Section 43-G reads as follows:- 43-G Grant of
lands under the preceding rules shall be subject to the following conditions.
(1) In
the case of grant of lands to applicants belonging to the Scheduled Castes and
Scheduled Tribes, and to other applicants, who are unable to pay the occupancy
price on account of poverty, the occupancy price may be waived up to rupees two
hundred and the balance recovered in three annual instalments.
(2) In
the case of grant of land to applicants who are ex- servicemen the occupancy
price shall be waived up to the extent awarded by Government under the Military
Concession Rules.
(3) In
the case of grant of land free of occupancy price, the grant shall be subject
to the condition that the grantee shall pay contribution or betterment levy in
respect of the land and the value of trees standing of the land.
(4)
Where the grant is made free of cost, or is made at a price which is less than
the full market value, the grant shall be subject to the condition that the
land shall not be alienated for a period of fifteen years from the date of the
grantee taking possession of the land, after the grant:
Provided
that such land may be alienated with the previous sanction of the Government
and subject to such conditions as the Government may specify, if the Government
is of the opinion that in the circumstances of any case, it is just and
reasonable to permit such alienation either for purposes of acquiring some
other land or for any other purpose:
Provided
further that nothing in this clause shall apply to:
(a)
the alienation of any land in favour of the State Government or Co-operative
Society as security for loans obtained for improvement of the land or for
buying cattle or agricultural implements for the cultivation of the land, or
alienation of any land in favour of the Indian Coffee Board as security for
loans advanced by the Indian Coffee Board under the Coffee Development Plan;
(b)
the leasing of any land by a person who is a widow, a minor or who is subject
to physical or mental disability or who is a serving member of the armed
forces.
(5)
The grantee shall cultivate the land personally.
(6)
The land shall be brought under cultivation within two years from the date of
the grantee taking possession of the land.
(7)
The grant is liable to be terminated [by the Divisional Commissioner or the
State Government] and the land resumed if any of the aforesaid conditions is
not fulfilled, and on such resumption the land shall vest in Government free
from all encumbrances:
Provided
that no land shall be resumed under this clause except after giving an
opportunity to the grantee or his successor in interest to show cause why the
grant should not be terminated and the land resumed." Rule 43-J is a
general clause empowering the authorities to grant land to the lessees to whom
lease had been granted previously. It reads as follows:-
43-J
Grant of land to persons to whom lands have been leased temporarily-
Notwithstanding anything contained in the preceding rules of this Chapter, in
the case of agricultural land leased by competent authority to any person for
purposes of cultivation at any time before the commencement of the Mysore Land
Revenue (Amendment) Rules, 1960, if such land is available for disposal and if
the conditions of the lease have been complied with, the land may be granted to
the lessee.
The
finding of the Full Bench of the Karnataka High Court is that if the grant is
made under Rule 43-J, there could not have been any condition restricting the
alienation and if at all there were any such conditions they are null and void.
This view has been taken for the reason that conditions restricting alienations
are given under clause (4) of Rule 43-G and these provisions would apply to
grant of lands made under the preceding rules and not apply to Rule 43-J which
comes after Rule 43-G of the Rules of 1960.
This
view has been taken based on the title/marginal note of Rule 43-G.
The
Full Bench was also of the view that under Rule 43-J, it is not stated that
there shall be any conditions prohibiting alienation. Therefore, the court held
that authorities were not empowered to impose any such conditions.
A
careful scrutiny of the entire scheme of the rules relating to grant of lease
to landless persons would show that the finding of the Full Bench on this issue
is legally not sustainable. First of all, Rule 43-J is only a general rule
which says that the lands which have been given on lease for agricultural
purposes could be assigned to the lessees if they complied with the conditions
of lease. The title to the land primarily vests with the Government.
The
Government while granting title to the lessees, can impose any conditions which
are permissible under law. The land is being given to lessees either free of
cost or at a price which is less than the full market price. It is not an
outright sale made by the Government for full consideration. In all these
cases, lands were given almost free of cost. The upset price of the land was
either fixed at Rs. 200-250 per acre and this Rs. 200 itself was waived and the
grantee was to remit only Rs. 50 per acre.
Grantee
was to execute "Saguvali Chit" and it incorporated a condition
prohibiting alienation for a period of 15 years. The history of the legislation
also would show that the State of Karnataka has all along been giving lands to the landless persons belonging to
Scheduled Castes and Scheduled Tribes subject to the restriction on alienation
of such land.
Rule
43-J is a general provision which empowers the authorities to invest the
lessees with title of the land provided the lessees fulfilled the conditions of
lease. The High Court assumed that conditions of alienation are not stated in
Rule 43-J and therefore, the authorities were not empowered to impose such
conditions. Rule 43-J is only an enabling provision which permits the competent
government authorities to grant title to lessees. The Government being the
paramount title-holder is empowered to impose any condition which is not
against the law and it is binding on the grantees. All these grants of land are
made under the general provisions of rules and Rule 43-J by itself is not a
provision by which grants are made. All the general provisions of the Rules of
1960 could be made applicable to such grant if the grant is made at a price
lesser than the market price, or is made free of cost.
In the
title to Rule 43-G, it is stated that the grants of lands under the preceding
rules shall be subject to the following conditions. This title to the rules as
such cannot be taken as the key words to interpret Rule 43-G. They have got the
effect of only marginal notes. The marginal notes are not considered as
legitimate aid to construction of any section or rule. The side notes are not
considered as part of the Act. Lord Macnaghten in a case decided by the Privy
Council held that the marginal notes cannot be referred [1964] A.C. 763 said: "
In my view, side notes cannot be used as an aid to construction. They are mere
catchwords and I have never heardthat an amendment to alter a side note could
be proposed in either House.So side notes cannot be said to be enacted in the
same sense as the long title or any part of the body of the Act." When the
rule itself says that where the grant is made free of cost or at a price which
is less than the full market value, such grant shall be subject to the
condition that the land shall not be alienated for a period of 15 years from
the date of the grantee taking possession of the land after the grant, such
conditions could be imposed on any grant made to the party.
In any
case, the High Court failed to take into account the clear language employed in
Section 4, according to which 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' shall be null and void(emphasis supplied). The violation of
the terms of grant itself gives rise to the action under Section 4 read with
Section 5. So long as the terms of the grant prohibiting transfer are not
opposed to any specific provision of law, they cannot be violated and the
transferee gets no rights by virtue of such invalid transfer. That is the sum
and substance of Section 4 which has not been duly considered by the High
Court.
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, inspite 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 the Act 2 of 1979. These lands
were given to landless persons almost free of cost and it was done as a social
welfare 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 "17.
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, 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 conditions restricting alienation imposed by the
authorities are legally valid and the finding of the Full Bench to the contrary
is not correct and the impugned Judgment is thus not sustainable in law. The
impugned Judgment is set aside, the order passed by the learned Single Judge is
upheld and these appeals are allowed. The authorities shall take appropriate
steps pursuant to the order passed by the authorities under the Act 2 of 1979
within a period of three months. There will be no order as to costs.
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