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Karnataka High Court · body

2008 DIGILAW 564 (KAR)

Paravathamma v. Special Deputy Commissioner

2008-09-30

AJIT J.GUNJAL, GUNJAL

body2008
ORDER Ajit J. Gunjal, J. The petitioners have suffered orders at the hands of Assistant Commissioner as well as the Deputy Commissioner. The sufferance is in view of respondents 3 and 4 making, an application under the PTCL Act for resumption and restoration of the land in question. The Assistant Commissioner has accepted the application which has been confirmed by the Deputy Commissioner. 2. The undisputed facts are that the land was granted in favour of the respondents on 01.08.1963 and the saguvali chit was issued on 24.02.1964. The sale took place on 21.02.1989 and respondents 3 and 4 filed an application on 03.04.1997 for resumption. Indeed, the only argument of Mr. Sanjay Gowda learned Counsel appearing for the petitioner is that Section 4(2) of the Act requires to be read down, inasmuch as, from the date of grant, 15 years had already elapsed and the non-alienation clause had rendered itself otiose. Hence, the petitioner having purchased it in the year 1989, the sale is not hit by the Act. He further submits that the sale which has taken place on 21.02.1989 is after 15 years, notwithstanding the fact that under Section 4(2) of the Act, the petitioners were required to take permission of the State Government for alienation. 3. Mr. Sanjay Gowda, learned Counsel for the petitioner has summarized his contentions as follows: (1) The intent of the Enacting Act 2/1979 is only for resuming lands alienated in contravention of the terms of the grant, inasmuch as, Section 4(2) of the Act can be attracted only when the period of non-alienation prescribed under the terms of the grant is still subsisting on the date of the transfer. (2) The land granted with the condition of non-alienation for a prescribed period is a conditional grant and on the expiry of the period, the grant becomes an absolute grant and the grantor loses his right to control the grant and thereafter Section 4(2) of the Act cannot be applied where the non-alienation clause prescribed has itself been spent. 4. He has also relied on certain observations made by the Apex Court in the case of Manchegowda and Others Vs. State of Karnataka and Others reported in (1984)2 KLJ 1. 5. Mr. 4. He has also relied on certain observations made by the Apex Court in the case of Manchegowda and Others Vs. State of Karnataka and Others reported in (1984)2 KLJ 1. 5. Mr. Devadas, learned AGA submits that notwithstanding the fact that the non-alienation clause has come to an end before the Act has come into force, the fact that the sale has taken place after the Act having come into force, Section 4(2) of the Act is clearly attracted, inasmuch as, the said provision would support the non-obstante clause that no person after the commencement of the Act transfer or acquire or purchase any granted land without permission of the Government. He also submits that the intent of the legislature can be looked into by reading the objects and the reasons of a statute. He further submits that the contention of the learned Counsel appearing for the petitioner is answered by the Apex Court in the case of Dharma Naika Vs. Rama Naika and Another reported in 2008 AIR sew 1312. He further submits that the fact that the application is made in the year 1997 in the absence of any limitation, it cannot be said that it is a stale claim which could not have been entertained by the authorities. 6. Mr. Shankaranarayan Bhat, learned Counsel appearing for the grantees would also rely on the decision of Dharma Naikas case to buttress his contention that Section 4(2) of the Act cannot be read down, inasmuch as, the main objects and reasons of the Act is to see that any sale shall not take place without prior sanction of the Government. 7. Indeed, I have given my anxious consideration to the submissions of the learned Counsel appearing for the petitioner as well as the respondents. 8. The point which requires to be determined in this petition is whether Section 4(2) of the Act in required to be read down if the sale has taken place after the Act having come into force after the expiry of the non-alienation clause and the sale which takes place after the Act having come into force is valid. 9. To appreciate this contention, one is required to look into the objects and reasons of the Act. The objects and the reasons of the Act are succinctly set out in the decision of the Apex Court in Dharma Naikas case. 9. To appreciate this contention, one is required to look into the objects and reasons of the Act. The objects and the reasons of the Act are succinctly set out in the decision of the Apex Court in Dharma Naikas case. A plain reading of the statement of objects and reasons for which the legislation has introduced this Act would show that the non-alienation clause contained in the existing land grant rules and the provisions for cancellation of grant where the land was alienated in contravention of the above said provision were found insufficient to help the Scheduled Caste and Scheduled Tribe grantees. It is evident from the perusal of the objects and reasons that due to ignorance and poverty of the depressed class, there was every possibility that they are likely to be exploited by persons belonging to affluent and powerful sections to have the lands transferred in their favour for a nominal consideration or for no consideration at all. Indeed, the objects would stress on the fact that the depressed class have become the victims of circumstances. It is for this reason and to fulfill the purpose of the grant, the present legislation is brought about. 10. Keeping these objects and reasons in mind, one will have to examine the contentions raised by the learned Counsel appearing for the petitioner as well as respondents. Indeed, the scheme of the Act is that the land in question must be granted by the Government to a person belonging to any of the Scheduled Cast or Scheduled Tribe community and it includes the land allotted or granted to such person under the relevant law for the time being in force. They would also relate to agrarian reforms or land ceiling or abolition of inams etc. The Scheduled Cast and Scheduled Tribe is defined and shall have the meaning respectively assigned to them in the constitution. Indeed to attract the said provision of the Act the allottee should not only be a grantee under the Act, but also must belong to the depressed class. More than this, there must be a transfer. The Scheduled Cast and Scheduled Tribe is defined and shall have the meaning respectively assigned to them in the constitution. Indeed to attract the said provision of the Act the allottee should not only be a grantee under the Act, but also must belong to the depressed class. More than this, there must be a transfer. Transfer is defined as a sale, gift, exchange, mortgage with or without possession, lease or any other transaction not being a partition among members of a family or a testamentary disposition and includes creation of a charge or an agreement to sell, exchange, mortgage or lease or enter into any other transaction. A perusal of the definition of transfer would disclose that it encompasses all kinds of transfer except for a partition in the family and testamentary disposition. Other than these two, all other transactions including an agreement to sell would come under the definition of transfer. In the case on hand, it is to be noticed that the land was granted in favour of the original grantee on 01.08.1963 and the saguvali chit was issued on 24.02.1964. 11. To appreciate the contention of Mr. Sanjay Gowda that Section 4(2) of the Act is required to be read down in view of the contentions raised by him, inasmuch as, if the sale had taken place after the expiry of the non-alienation clause before the Act had come into force, the sale would be valid and on the same analogy if the sale takes place after the Act has come into force when the non-alienation clause had rendered itself otiose before the Act having come into force, it would be valid. Indeed, this argument is very attractive but however may not advance the case of the petitioner, inasmuch as, the scheme of the Act is required to be read in tandem with the objects and reasons and they are required to be given effect to. The purpose of the enactment as stated earlier is to see that the deprived class are restored with the lands which were granted to them which by spate of circumstances they had to part with. Section 4(2) of the Act is required to be read as double-check which is in furtherance of the objects and reasons. It is no doubt true that the contention of Mr. Section 4(2) of the Act is required to be read as double-check which is in furtherance of the objects and reasons. It is no doubt true that the contention of Mr. Sanjay Gowda that what is sauce for the goose shall certainly be sauce for the gander but however, such a theory cannot be read into the enactment. It is no doubt true that if the sale were to take place after the expiry of the nonalienation period before 312.1978, the same would be valid but however, if the sale takes place on 02.0~.1979 it would be invalid, inasmuch as, Section 4(2) will come into play. The very purpose of the Act is that such a sale should not take place after the Act having come into force. It might be a quirk of fate but however this is how the statute would work. There certainly should be a cut of date and that is 01.01.1979. Mr. Sanjay Gowda would rely on certain passages from Manche Gowdas case. No doubt at first blush, it would give an indication that the lands which are sold in the breach of conditions are hit by the Act and lands which are sold after the non-alienation period is concerned, they are save. But however, what is significant is that the challenge there was only in respect of alienation which have taken place during the embargo and the sales which have taken place after the embargo is removed. Indeed, the Apex Court was very emphatic that all such sales which have taken place during the non-alienation period are certainly hit by the Act and insofar as the sales which have taken place after the period is over are saved but however, Section 4(2) of the Act would come into play when a sale takes place after the Act has come into force. Indeed, in this regard, a complete answer to the contentions of Mr. Sanjay Gowda can be found in the recent decision of the Apex Court in Dharma Naikas case. In fact, the entire gamut of Section 4(2) of the Act fell for consideration before the Apex Court. The Apex Court has observed thus: "Section 4(2) of the Act, as noted herein-earlier, deals with the transfer of granted land after the commencement of the Act i.e., after 1st of January, 1979. In fact, the entire gamut of Section 4(2) of the Act fell for consideration before the Apex Court. The Apex Court has observed thus: "Section 4(2) of the Act, as noted herein-earlier, deals with the transfer of granted land after the commencement of the Act i.e., after 1st of January, 1979. For the purpose of Section 4(2), the Court must be satisfied that 1) the sale deed was executed and registered after the commencement of the Act, and 2) the same was executed and registered without seeking prior permission of the State Government. Therefore, Section 4(2) clearly postulates that a transferee cannot acquire the granted land from the grantee without seeking the permission of the Government nor can the grantee transfer it without seeking permission from the Government. We have already considered the scheme of the Act as also the objects and reasons for which it was introduced. It is an admitted position that the Act was introduced to help and protect the right, title and interest of the Scheduled Castes and Scheduled Tribes, in respect of the granted lands, whose poverty and status in the society was taken advantage of by some rich and affluent persons who took their lands either by paying a paltry sum or even without paying anything to them." Indeed a fine distinction is required to be drawn between the sales which have taken place after the embargo prior to the Act having come into force and the sales which have taken place after the Act having come into force after the non-alienation period is over. In fact, Section 4 would commence with a non-obstante clause which would necessarily mean that notwithstanding any transaction which have taken place at any point of time, if any sale takes place after the Act has come into force i.e., 01.01.1979, the purchaser is required to obtain necessary permission from the Government which I am afraid is lacing in this proceedings. The object of this Act is required to be interpreted so as to advance the cause and the purpose for which the Act was enacted. The Apex Court in the case of State Banks Staff Union (Madras Circle) Vs. The object of this Act is required to be interpreted so as to advance the cause and the purpose for which the Act was enacted. The Apex Court in the case of State Banks Staff Union (Madras Circle) Vs. Union of India reported in 2005(7) SCALE 296 has observed that it is the cardinal rule of interpretation that objects and reasons of a statute is to be looked into as an extrinsic aid to find out the legislative intent only when the meaning of he statute by its ordinary language is obscure or ambiguous. But if the words used in a statute are clear and unambiguous then the statute itself declares the intention of the legislature and in such a case, it would not be permissible for a Court to interpret the statute by examining the objects and reasons for the statute in question. The smooth balance built with delicacy must always be maintained and in the anxiety to safeguard judicial power it is unnecessary to be over-zealous and conjure up incursion into the judicial preserve to invalidate the valid law competently made. The validity of the Act was questioned in a spate of writ petitions and eventually the Apex Court in the case of Manche Gowda has upheld the validity of the Act. Section 4 of Act therein was read down only to the extent that any sale which has taken place after the expiry of the non-alienation before the Act has come into force are saved and also insofar as whether the purchaser has perfected his title by adverse possession. 12. Mr. Sanjay Gowda has also raised a contention that Section 6 of the Act bars registering of all documents in relation to a granted land. Indeed, it is true that any sale deed which contravenes the Act is debarred from being registered. But however, the fact remains that such a sale is registered does not necessarily mean that Section 4(2) of the Act is required to be overlooked. Indeed, Section 8 of the Act would also contemplate that if any sale takes place after the Act has come into force in contravention of Section 4(2) the purchaser is liable to be prosecuted. But however, as has been submitted by Mr. Indeed, Section 8 of the Act would also contemplate that if any sale takes place after the Act has come into force in contravention of Section 4(2) the purchaser is liable to be prosecuted. But however, as has been submitted by Mr. Devadas, Section 8 of the Act is not seriously pressed into service at any point of time, inasmuch as, most of the transactions have taken place in ignorance of the land grant rules as well as the Act. 13. This takes us to the last limb of Mr. Sanjay Gowdas argument that the application for resumption is made in the year 1997 i.e., after nearly 7 years from the date of sale. Indeed, Mr. Sanjay Gowda is right in submitting that when there is no limitation prescribed under the statute, any application is required to be made within a reasonable time, but however what is required to be seen is that this is a special statute where the deprived class are being done our of their lands and the purpose of the Act is to see that the lands are restored. It is no doubt true that no limitation is prescribed but however, it cannot be said that the application made by the respondents can be thrown out solely on the ground that it has not been made within a reasonable time or for that matter it can be considered as a stale claim or as an afterthought. Indeed, it is to be noticed that under the scheme of the Act it is not necessary that the grantee should make an application. But if the authorities in due course find that the sale has taken place in contravention of the Act, they can certainly initiate suo motu proceedings. In these circumstances, even otherwise, I am of the view that the application of the grantee cannot be thrown out on the ground that it was not made within a reasonable time. 14. Having given my anxious consideration to the submissions of Mr. Sanjay Gowda. I am of the view that his request for setting aside the order of the authorities cannot be granted. I do no Find any merit in this petition. Petition is rejected. Rule discharged.