Bhadrappa
(D) by LRS. Vs. Tolacha Naik [2008] Insc 19 (8 January 2008)
Dr.
Arijit Pasayat & P. Sathasivam
[With
Civil Appeal No.7799/2001] Dr. ARIJIT PASAYAT, J.
Civil
Appeal No. 7782 of 2001 1. Heard learned counsel for the parties.
2.
Challenge in this appeal is to the order passed by a Division Bench of the
Karnataka High Court dismissing the writ appeal filed under Section 4 of the
Karnataka High Court Act (in short the High Court Act). Challenge in
the appeal was to the order passed by a learned Single Judge who had dismissed
the writ petition filed by the appellant-Bhadrappa.
After
the death of Bhadrappa, his legal heirs were brought on record and they are the
appellants before this Court.
3.
Background facts in a nutshell are as follows:
The land
in question was granted some time in the year 1955 in favour of one Gopya Naik
who is referred hereinafter as grantee. Saguvali Chit was issued on 11.10.1956.
Seetamma,
widow of the grantee who was also the mother of respondent No.3 sold the land
in the year 1959 in favour of one Gangappa who in turn sold the said land to
Ahmad Pasha and there was subsequent sale by Ahmad Pasha to Bhadrappa. The land
in question bears Survey No.106 measuring 3 acres and 5 guntas.
4.
Proceedings were initiated on the basis of an application that the alienation
was hit by Section 4 of Karnataka Scheduled Castes and Schedules Tribes
(Prohibition of Transfer of Certain Lands) Act, 1978 (in short the
Act).
5.
Sections 4 and 5 of the Act read as follows:
4.
Prohibition of transfer of granted lands.-
(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-sections (1) and (2) shall apply also to the sale of any
land in execution of a decree or order of a civil court or of any award or order
of any other authority.
5.
Resumption and 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 form all encumbrances. The
Government may grant such land to a person belonging to any of the Scheduled
Castes or Scheduled Tribes in accordance with the rules relating to grant of
land.
(1A)
After an enquiry referred to in sub-section (1) the Assistant Commissioner may,
if he is satisfied that transfer of any granted land is not null and void pass
an order accordingly.]
(2)
Subject to the orders of the Deputy Commissioner under section 5A, any order
passed under sub-sections(1) and (1A) 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 then 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.
6. An
order was passed in the proceeding under Section 5 of the Act to the effect
that the alienation had been effected within the period of prohibition. The
appellant took the stand that the land was not a free grant land. It was a
grant for upset price. The authorities concluded that it was a free grant.
The
writ petition was dismissed.
7. The
stand before the learned Single Judge and the Division Bench were reiterated.
8.
Section 5(3) of the Act clearly provides that any person other than the grantee
or his legal heirs in possession of the granted land, shall be deemed to be in
possession under a transfer which is null and void under Sections 4(1) and 4(2)
until and unless anything contrary is established. Burden, therefore, is on the
person in possession to prove that his possession was valid in accordance with
law. It was found factually that the writ petitioner had failed to establish
the same. The transfer in favour of Gangappa was in violation of the
prohibition of the Act.
That
being so, the High Court was right in dismissing the writ petition and the writ
appeal. In Guntaiah and Ors. v. Hambamma and Ors. (2005 (6) SCC 228 at para 14)
it was noted as follows:
It
is also pertinent to note that the prohibition regarding alienation is a
restrictive covenant binding on the grantee. The grantee is not challenging
that condition. In all these proceedings, challenge is made by the third party
who purchased the land from the grantee. The third party is not entitled to say
that the conditions imposed by the grantor to the grantee were void. As far as
the contract of sale is concerned, it was entered into between the Government
and the grantee and at that time the third-party purchaser had no interest in
such transaction. Of course, he would be entitled to challenge the violation of
any statutory provisions but if the grant by itself specifically says that
there shall not be any alienation by the grantee for a period of 15 years, that
is binding on the grantee so long as he does not challenge that clause, more so
when he purchased the land, in spite of being aware of the condition. The Full
Bench seriously erred in holding that the land was granted under Rule 43-J and
that the Authorities were not empowered to impose any conditions regarding
alienation without adverting to Section 4 of Act 2 of 1979. These lands were
given to landless persons almost free of cost and it was done as a social
welfare measure to improve the conditions of poor landless persons. When these
lands were purchased by third parties taking advantage of illiteracy and
poverty of the grantees, Act 2 of 1979 was passed with a view to retrieve these
lands from the third-party purchasers. When Act 2 of 1979 was challenged, this
Court observed in Manchegowda v. State of Karnataka (SCC pp. 310-11, para 17) 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. Civil Appeal No.7799 of 2001:
9. In
view of the position of law indicated in the connected Civil Appeal No.7782 of
2001 this appeal is sans merit.
10.
Above being the position, there is no merit in these appeals which are
accordingly dismissed with no order as to costs.
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