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2001 DIGILAW 229 (KAR)

MOHAMMED JAFFAR v. STATE OF KARNATAKA

2001-03-09

S.R.BANNURMATH

body2001
BANNURMATH, J. ( 1 ) THE petitioners in this petition have challenged the order dated 8-12-1998 passed by the Assistant Commissioner, Bhatkal, in PTCL/ cr/3/ 98-99 (vide Annexure F) declaring the sale of the land Survey no. 415/1 measuring 7. 25 guntas out of the total extent of 1 acre 19 guntas of Susugadi village in Bhatkal Taluk. The brief facts of the case which are not much in dispute are as follows: ( 2 ) THE entire Survey No. 415/1 originally belonging to one smt. Ramabai was a tenanted land. After coming into force the karnataka Land Reforms Act as amended by Karnataka Act No. 1 of 1974 (hereinafter referred to as the Land Reforms Act) one Rama govinda Mogera, since deceased and now represented by his L. Rs, respondents 4 and 5, filed an application in Form No. 7 for conferring occupancy rights to him on the ground that on the appointed date, i. e. , 1-3-1974, he was the tenant in occupation and enjoyment of the land. After following due procedure like issuance of notice to all the concerned, recording the evidence, etc. , the Land Tribunal by the order dated 25-3-1976 conferred occupancy rights to the said tenant Rama Goinda Mogera to an extent of 30 guntas. This conferment of occupancy rights in favour of the tenant Rama Goinda mogera was not challenged by the landlord and has become final, form No. 10 Certificate of Registration of Occupancy under Section 55 of the Land Reforms Act also was issued. One of the conditions imposed in the Certificate was that the occupant or his successor shall not alienate or transfer the land for 4 period of 15 years from the date of such conferment of right. This Certificate was issued on 5-5-1978. It is also not in dispute that the original tenant Rama died and Respondents 4 and 5 became the legal representatives and successors to the occupancy rights. After the period of limitation of 15 years prescribed in Form No. 10 was over, in the year 1995 they applied to delete the condition of non-alienation and thereby seeking permission to transfer or alienate the land. By the order dated 20-5-1995 (vide Annexure D), the Deputy Commissioner directed to delete the condition of restriction. According to the petitioner, after such condition was deleted, on 9-12-1997 an extent of 7. By the order dated 20-5-1995 (vide Annexure D), the Deputy Commissioner directed to delete the condition of restriction. According to the petitioner, after such condition was deleted, on 9-12-1997 an extent of 7. 25 guntas out of the 30 guntas came to be sold to the petitioners for a valuable consideration of Rs. 1. 3 lakhs. This sale came to be registered. ( 3 ) THEREAFTER, under the provisions of the Karnataka Scheduled castes and Scheduled Tribes (Prohibition of Transfer of Certain lands) Act, 1978 (hereinafter referred to as the PTCL Act), suo moto proceedings were initiated by the concerned authority (under the ptcl Act) for declaring the sale of the land in favour of the petitioners as null and void and restoration of possession. The Assistant commissioner who is the competent authority by the impugned order dated 8-12-1998 on finding that the land in question was granted to a person belonging to Scheduled Caste/ Scheduled Tribe category and as the alienation was in contravention of the provisions of the grant as well as on the ground that prior to the alienation as no permission of the concerned authority was obtained, as per the order (vide Annexure D) held that the sale was null and void and consequently ordered that the vendor/grantee is entitled to get back the possession. Aggrieved by the same, the petitioners have approached this Court in the present Writ Petition. Sri Subba Rao, learned Senior Counsel appearing for the petitioners, vehemently contended that the authority was in error in applying the provisions of the PTCL Act to the alienation of the land in question; that the provisions of the PTCL Act are not at all applicable to the cases where occupancy have been conferred even to a person belonging to SC/st Category. The learned Counsel drew my attention to the aims and objects of both the Acts, viz. , the Land reforms Act and the PTCL Act, to contend that the conferment of occupancy rights under the Land Reforms Act cannot be equated to the grant of land under any other provisions like the Land Revenue act, Land Grant Rules, Inam Abolition Act, etc. , the Land reforms Act and the PTCL Act, to contend that the conferment of occupancy rights under the Land Reforms Act cannot be equated to the grant of land under any other provisions like the Land Revenue act, Land Grant Rules, Inam Abolition Act, etc. It is contended that the provisions of the PTCL Act are only applicable to the cases where the original grant is to a person only belonging to SC/st category and the grant is made only on that count; whereas it is not applicable to the cases of conferment of occupancy rights to tenants under the provisions of the Land Reforms Act even if incidentally such occupant belongs to SC/st category and as such it is contended that the impugned order is without jurisdiction and Iiable to be quashed. ( 4 ) IT is to be noted that the contesting, Respondents 4 and 5 in whose favour the impugned order is passed, though served, have remained unrepresented. However, the learned High Court government Pleader appearing for the State and its machinery respondents 1 to 3, argued in support of the impugned order (Annexure D) inter alia contending that the question raised by the learned Counsel for the petitioners is no longer res Integra. Drawing my attention to a reported judgment of this Court in the case of narayan PARAMESWAR NAIK AND OTHERS vs DEPUTY commissioner, KARWAR, UTTARA KANNADA DISTRICT AND others it is contended that, as held by this Court in the said judgment, even the transfer of the land granted under the provisions of the Land Reforms Act is amenable to the jurisdiction and provisions of the PTCL Act. As the, contesting respondents are served but remain unrepresented and a question of law of general importance arises, this Court requested Sri B. S. . Patil, learned Counsel, to act as amicus curiae to assist the Court. ( 5 ) THE facts and history of the case are not in much dispute and as such need no elaborate reference. As the, contesting respondents are served but remain unrepresented and a question of law of general importance arises, this Court requested Sri B. S. . Patil, learned Counsel, to act as amicus curiae to assist the Court. ( 5 ) THE facts and history of the case are not in much dispute and as such need no elaborate reference. But, in view of the law declared by the learned Single in Narayan Parameshwara's case (cited supra) and the contrary arguments addressed by the learned Counsel for the petitioners and the learned Amicus Curiae and the learned High court Government Pleader, what is mainly required to be considered is: whetner the land in respect of which occupancy rights have been conferred in favour of a tenant under the provisions of the karnataka Land Reforms Act 1974, can be construed as "granted land" as defined under Section 3 (b) of the Karnataka Scheduled castes and Scheduled Tribes (Prohibition of Transfer of Certain lands) Act, wherever the tenant belongs to Scheduled Caste or scheduled Tribe and thus is amenable to the jurisdiction and operation of the PTCL Act? ( 6 ) I have perused the judgment of the learned Single Judge in narayan Parameswara's case (cited supra) and after considering the arguments of the learned counsel for the petitioner and the learned Amicus Curiae appearing in the present case and on going through the aforesaid pronouncement, as I do not respectfully agree with the pronouncement I am re-considering the entire law on this aspect. ( 7 ) BEFORE going into this question, it is to be noted that the basic facts in the Narayan Parameswara's case were also similar to the present case. The learned Single Judge, while holding that the provisions of the PTCL Act are also attracted to the transfer or alienation of lands of which occupancy rights have been conferred to a person belonging to Scheduled Caste or Scheduled Tribe under the provisions of the Land Reforms Act, if it is found that there is violation of any condition in the grant. The learned Single Judge by referring to the definition "granted land" under Section 3 (b) of the ptcl Act and Section 44 of the Land Reforms Act has observed thus: "so these lands held by the tenants in whose favour occupancy rights have been granted, stood vested in the government thereunder new rights were granted and the transferrers were none else but the persons who were granted land with occupancy rights. But right and title of ownership did vest in the Government and did not remain with the previous proprietor. As such, in my opinion, even if the occupancy rights were granted in favour of the transferor who were the persons belonging to Scheduled Caste, they were to be treated as persons to whom lands were granted for the purpose of the Act. Section 4 of the Act declares all transfers of the granted land, irrespective of any provisions in any law, agreement, contract or instrument to the contrary, even if made either before or after the commencement of the Act and if such transfer is in contravention of either of the terms of the grant of such land or is in contravention of either of the terms of the grant of such land or is in contravention of the law providing for such grant, or is in contravention of sub-section (2) of Section 4, then such transfer has been declared to be null and void and ineffective. (emphasis supplied) with great respect to the learned Single Judge and I am differing with this view the following reasons. For this purpose we have to look into the aims and objects of both the Acts, viz. , the Land Reforms Act and the PTCL Act, as well as the relevant provisions so as to make a harmonious construction in this regard. ( 8 ) THE Land Reforms Act was enacted to make a uniform law in the State relating to agrarian relations, conferment of ownership on tenants, ceiling on land holding, etc. Under Section 44 of the Land reforms Act all the lands held by or in possession of tenants immediately prior to the date of commencement of the Act other than the lands held by them under leases permitted under Section 5, shall, with effect on and from the said date, stand transferred to and vest in the State Government. Under Section 44 of the Land reforms Act all the lands held by or in possession of tenants immediately prior to the date of commencement of the Act other than the lands held by them under leases permitted under Section 5, shall, with effect on and from the said date, stand transferred to and vest in the State Government. ( 9 ) UNDER Section 45 of the Land Reforms Act subject to the provisions of the succeeding sections of Chapter III, every person who was a permanent tenant, protected tenant or other tenant or lawful sub-tenant shall with effect on and from the date of vesting be entitled to be registered as an occupant in respect of the lands. Keeping in view the aims and objects of the Land Reforms Act as well as these two provisions, it is to be noted that vesting of the land under Section 44 of the Land Reforms Act is only if the land is a tenanted land and if that so only on such fulfilling the conditions it would vest in the Government and not otherwise. Similarly under section 45 of the Land Reforms Act, if a person shows or proves that he was a lawful tenant on the appointed date, he is entitled for conferment of occupancy rights. By reading Section 45 of the Land reforms Act and especially the word "shall" it denotes that there is no discretion left with the Government in this regard. If a person proves before the competent authority (Land Tribunal) that he is cultivating the land personally on the appointed date, the right of occupancy has to be conferred upon him and thereafter he is to be registered as an occupant. ( 10 ) IN my view, both Sections 44 and 45 of the Land Reforms Act make it clear that the conferment of occupancy rights upon a tenant is a statutory right created in favour of the tenant and the Government has no choice in this regard; whereas, if the "grant" referred to in the PTCL Act is considered with reference to the Land Revenue Act or the Land Grant Rules or any other provisions under which such grant can be made, there is a discretionary power given to the government. Of course, this discretion has to be exercised properly. Of course, this discretion has to be exercised properly. There are certain norms and conditions fixed for a person to claim such grant and even if a person fulfils all the conditions, still it is open to the Government either to grant the land claimed or not to grant depending upon various other circumstances. As such, basically i feel that the "conferment of occupancy" under the Land Reforms act is not the same as the "grant of the land" to various persons under the existing laws like the Land Revenue Act and the Rules thereunder like the Land Grant Rules. ( 11 ) AT this stage itself, it is to be noted that under the Land Reforms act itself under Section 77 such a granting power has been conferred upon the Government that too with certain restrictions. In my view, conferring occupancy rights to a tenant is not the same as granting of land to any other persons, only because in both the cases the land has vested in the State Government. In so far as the other grants are concerned, the lands may be vesting with the Government because of certain conditions, though they initially belong to individuals or the land may be what is called as "government land", i. e. , from the inception the same is of the ownership of the government like "gomal land", "forest land", etc. Taking into consideration the discretionary and non discretionary power of the government under the general law regarding grant and the Land reforms Act, it can be said that in the case of discretion the grant is like a gift to the person. On the other hand, as noted, by looking into Sections 44 and 45 of the Land Reforms Act whenever a person is cultivating a land as a tenant and is in occupation of the same on the appointed date he as a right is entitled for conferment of occupancy. It is also to be noted that the vesting under Section 44 of the Land Reforms Act takes place only if it is shown that the land was a tenanted land. In my view, it cannot be construed in the reverse way, i. e. , after vesting under the Land Reforms Act the tenant is entitled for conferment of occupancy rights. In my view, it cannot be construed in the reverse way, i. e. , after vesting under the Land Reforms Act the tenant is entitled for conferment of occupancy rights. Under the Land reforms Act by virtue of law itself a right to claim occupancy rights is created in respect of the tenant. But in so far as the claim for any grant of land belonging to the Government is concerned, it is only like a mercy petition to the Government to give such land for livelihood of the persons belonging to various categories like the depressed Class, Ex-service men, displaced tenants. Landless agricultural labourers, released bonded labourers, etc. It is also to be noted that under the provisions of the Land Reforms Act, conferment of occupancy as a right is irrespective of any caste or creed of a person. Such conferment of occupancy rights is only subject to the ceiling limit as is mentioned in sub-section (2) of section 45 of the Land Reforms Act and there are no other restrictions. In a given case, a person may be owning 10 acres of land and still if he proves that in respect of another land he was a lawful tenant, again, as a right he is entitled for conferment of occupancy. But, so far as the general grants are concerned, these grants are made only to persons belonging to a particular category mentioned above and with a further condition that he should not own any other land and/or his income should not be more than a particular limit prescribed. Thus, in my view, the conferment of occupancy rights under the provisions of the Land Reforms Act in normal circumstances cannot be equated to the "grant" of land made by the Government under the Land Revenue Act or any other similar enactment. Since the basis difference is: in the first case it is a statutory right to get occupancy rights whereas in the second it is an obligation and discretion of the Government to look after its subjects especially the persons belonging to weaker sections or depressed class, etc. by granting them some land for eking out their livelihood. Since the basis difference is: in the first case it is a statutory right to get occupancy rights whereas in the second it is an obligation and discretion of the Government to look after its subjects especially the persons belonging to weaker sections or depressed class, etc. by granting them some land for eking out their livelihood. No doubt under the PTCL Act especially the definition of "granted land" is found under Section 3 (b) which reads as follows: " (b) "granted land" means any land granted by the government to a person belonging to any of the Scheduled castes or the Scheduled Tribes and includes land allotted or granted to such persons under the relevant law for the time" being in force relating to agrarian reforms or land ceilings or abolition of inams, other than that relating to hereditary office or rights and the word 'granted', shall be construed accordingly, (emphasis supplied) ( 12 ) THOUGH we find in this definition inclusion of class of land "allotted or granted" to persons under the relevant law relating to agrarian reforms, a harmonious construction is necessary to find out whether all the lands governed by the Land Reforms Act are same and come within the purview of agrarian reforms. ( 13 ) AS stated earlier, under Section 45 of the Land Reforms Act which was the basic concept for amending the Land Reforms Act as it existed then, the main object was to confer occupancy rights to the tenants who were in possession and enjoyment of the land on the appointed date. It is also to be noted that there are other provisions of the Land Reforms Act itself which provide for "grant" of land to various other persons. Thus the other types of lands are the lands covered by Sections 58, 60, 61, 66, 68, 69 and 71. Under section 77 of the Land Reforms Act only these types of lands which also vest with the Government can be, granted by the State to various categories of persons mentioned under Section 77. Thus the other types of lands are the lands covered by Sections 58, 60, 61, 66, 68, 69 and 71. Under section 77 of the Land Reforms Act only these types of lands which also vest with the Government can be, granted by the State to various categories of persons mentioned under Section 77. If one peruses section 77 of the Land Reforms Act, there is a statutory reservation of such surplus or vested land in the Government by which 75% of these land of which 75% is to be reserved for the purpose of granting to the persons belonging to Scheduled Castes and Scheduled Tribes and the remaining can be granted to the following categories of persons: (i) Dispossessed tenants who are registered as occupants; (ii) Displaced tenants having no land; (iii) Landless agricultural labourers; (iv) Landless person whose gross annual income does not exceed rupees four thousand and eight hundred and ex-military personnel whose gross annual income does not exceed rupees twelve thousand; (v) Released bonded labourers; (vi) Other persons residing in villages in the same Panchayat and whose gross annual income does not exceed rupees two thousand. ( 14 ) IN my view, these are the only lands which can be terms as the land belonging to the Government by virtue of vesting and are at the disposal of the Government for granting it to the needy persons. Hence, in my view the reference to the words "relating to agrarian reforms and land ceiling" under Section 3 (b) of the PTCL Act is only in respect of such lands and not all the lands referred to in the land Reforms Act as having vested in the Government, especially the land of which occupancy right has been granted. As such I am of the view that only because a person has been conferred with occupancy rights under Section 45 of the Land Reforms Act and incidentally he belongs to either Scheduled Caste or Schedule Tribe and if he transfers or alienates the land, it cannot be said that he has violated the Grant Rules so as to bring the alienation within the purview of PTCL Act. It is to be noted here itself that, if a tenant to whom occupancy rights have been conferred violates the conditions the Government has been empowered under Section 16 or Section 51 the land to forfeit by revesting back to the Government and not otherwise. In such case, this revesting brings such type of lands within purview of Section 77 of the Land Reforms Act and it is only then if there is a grant of such lands to some persons not on the basis of he being a tenant but only on the basis of he belonging to depressed class or weaker sections or similar categories mentioned therein. Only these types, of lands, in my view, fell within the purview of the PTCL Act, if there is any alienation or transfer by such later grantees. ( 15 ) IN the present case, it is to be seen that Survey No. 415/1 was originally belonged to one Ramabai and one Rama Goinda Mogera (whose legal representatives are Respondents 4 and 5) who claimed occupancy rights by filing Form No. 7 prescribed and the Land tribunal conferred such occupancy rights. While conferring the occupancy rights restriction was placed on the tenant not to alienate the land for 15 years from the date of such conferment without prior permission of the competent authority. It is also undisputed that after this period of 15 years, Respondents 4 and 5 herein sought necessary permission from the Deputy Commissioner to alienate that too after 15 years and the same was granted to them, vide Annexure d. Only thereafter in the year 1997 the petitioner has purchased the same under a registered sale deed for valuable consideration. Thus in the present case there was no violation of any condition. Now under the impugned order, this alienation in favour of the petitioner is sought to be annulled only on the ground that Respondents 4 and 5 belong to SC/st category. In my view and for the reasons mentioned above, this may now be a correct view. ( 16 ) AS noted earlier, learned Single Judge of this Court in the case narayan Parameswara Naik's (cited supra) without possibly considering these aspects has held that these types of lands wherein occupancy rights have been conferred also come within the purview of the PTCL Act. In my view, this construction is not correct. ( 16 ) AS noted earlier, learned Single Judge of this Court in the case narayan Parameswara Naik's (cited supra) without possibly considering these aspects has held that these types of lands wherein occupancy rights have been conferred also come within the purview of the PTCL Act. In my view, this construction is not correct. In my humble opinion the learned Single Judge has taken into consideration the only "vesting" part and has not looked into the other aspects, viz. , whether it is a 'grant' in general term or 'conferment' of occupancy right as a statutory right. ( 17 ) SINCE I am in disagreement with the view of the learned Single judge in this regard and as the same is question of law of general importance, in my view, this is a fit case for reference to the Division bench to decide the question: whether the land in respect of which occupancy rights have been, conferred in favour of a tenant under the provisions of the karnataka Land Reforms Act 1974, can be construed as "granted land" as defined, under Section 3 (b) of the Karnataka Scheduled castes and Scheduled Tribes (Prohibition of Transfer of Certain lands) Act, wherever the tenant belongs to Scheduled Caste or schedule Tribe and thus is amenable to the jurisdiction and operation of the PTCL Act or only restricted meaning to be given in this regard? ( 18 ) AS such, office is directed to place the records before the Hon'ble Chief Justice for referring the case to a Division Bench for decision. --- *** --- .