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2011 DIGILAW 95 (KAR)

R. Kumaraswamy v. Channamma

2011-01-22

AJIT J.GUNJAL, B.MANOHAR

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JUDGMENT The writ petition is referred to division Bench pursuant to the order passed by the learned single judge dated 14/11/2002 under section 9 of the Karnataka High Court Act. The learned single judge was of the view that once the conditions of grant are satisfied as per the relevant rules which were in force as on the date of grant, the land ceases to be a granted land and therefore, if the said land was purchased subsequent to coming into force of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978, (for short, hereinafter referred to as the ‘act’). Section 4(2) of the said act has no application. But however, the learned single judge had some doubt with regard to the decision in the case of Eranna versus Deputy Commissioner, Chitradurga District reported in ILR 2001 KAR 3136. Under these circumstances, the matter is placed before us. Indeed we notice that the entire writ petition is referred for the decision of this court. 2. The facts relevant for the purpose of disposal of this writ petition can be briefly stated as follows: The land bearing Survey no.13 measuring 4 acres situated at Lingammanahalli village, Honakeri hobli, Nagamangala Taluk, was granted to the husband of the first respondent in the year 1960 at an upset price and subsequently grant certificate has also been issued on 28/5/1963. The first respondent herein sold the land in question in favour of the second respondent pursuant to a registered sale deed dated 7/5/1987. The second respondent thereafter sold the same land in favour of the third respondent on 30/0/1994 and the third respondent sold the same in favour of the petitioner on 1/11/1997 that is after coming into force of the Act. Thereafter the first respondent makes an application before the Assistant Commissioner, Pandavapura, for restoration of the land. The Assistant Commissioner accepts the application by an order dated 18/12/1998. Aggrieved by the said order, petitioner was before the Deputy Commissioner by way of an appeal. The Deputy Commissioner rejected the appeal filed by the petitioner pursuant to the order dated 8/12/2000. Questioning the said orders, the petitioner is before this court. 3. In support of the writ petition Mr. Aggrieved by the said order, petitioner was before the Deputy Commissioner by way of an appeal. The Deputy Commissioner rejected the appeal filed by the petitioner pursuant to the order dated 8/12/2000. Questioning the said orders, the petitioner is before this court. 3. In support of the writ petition Mr. Angadi, learned counsel appearing for the petitioner submits that the petitioner being the third purchaser in the year 1997 and the sale having taken place after 15 years from the date of grant, the question of the Act becoming applicable would not arise, in as much as according to him the sale has taken place after the stipulated period as mentioned in the Grant Certificate. The other contention raised by him is that the first sale took place in the year 1987, that is once again after the stipulated period mentioned in the Grant Certificate. When the sale itself has taken place after the stipulated period, the question of the first respondent claiming restoration of the land would not arise. Thus, according to him, the sale is valid. Another contention raised by him is as the first sale having taken place on 7/5/1987, the petitioner has perfected his title by adverse possession, inasmuch as notwithstanding the fact that the non-alienation clause having commenced in the year 1987 during the pendency of the proceedings, the stipulated period having been completed. 4. Mr. Rajagopal, learned counsel appearing for the legal heir of original grantee submits that the question is no longer res integra inasmuch as the sale itself having taken place after the Act coming into force on 1/1/1979, Section 4 of the Act would come into play and there shall not be any sale and sale or transfer of a granted land is prohibited. 5. Mr. Devadas, learned Additional Government Advocate, submits that in an identical matter, this court in W.P.41841/2002 (SCST) decided on 30/9/2008 has ruled that a sale which has taken place after the act having come into force is null and void. 5. Mr. Devadas, learned Additional Government Advocate, submits that in an identical matter, this court in W.P.41841/2002 (SCST) decided on 30/9/2008 has ruled that a sale which has taken place after the act having come into force is null and void. So far as the adverse possession is concerned, he submits that the question is also no longer res integra inasmuch as the Apex Court in the case of D N Venkatarayappa & ANR versus State of Karnataka & others reported in AIR 1997 Sc 2930 has ruled that the failure of purchaser to disclaim title under which he came in possession and set up title open and hostile to knowledge of true owner pleading adverse possession cannot be accepted. He also presses into service the decision of the Apex Court in the case of Dharma Naika versus Rama Naika & ANR reported in 2008 AIR SCW 1312. 6. It is not only the question of law which is referred to this court but the entire writ petition. Hence, we are required to dispose of the entire writ petition itself. 7. The point which would arise for our consideration is whether Section 4(2) of the Act is required to be read down if the sale has taken place after the Act having come into force and after the expiry of the non-alienation clause and whether such sale is valid? 8. To appreciate this contention, one is required to look into the objects and reasons of the Act. The objects and reasons of the act are succinctly set out in the decision of the Apex Court in Dharma naika’s case. A plain reading of the objects and reasons, for which the legislature 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 provisions 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. 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. 9. Keeping the objects and reasons of the Act in mind one will have to examine the contentions of the learned counsel appearing for the petitioner as well as the respondents. 10. 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 Caste 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. Scheduled Caste 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 anything else, there must be a transfer. Transfer is defined under Section 3 (1) (e) of the Act which would read as under: “Transfer means 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 the creation of a charge or an agreement to sell, exchange, mortgage or lease or enter into any other transaction”. 11. This definition is inclusive of sale, gift, exchange, mortgage with or without possession, lease or any other transaction not being a partition among members of the family or a testamentary dispossession 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. 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, we notice that the grant was in the year 1960 and the Grant Certificate has been issued on 28.5.1963. 12. To appreciate the contention as to whether Section 4 of the Act can be pressed into service by the respondents to avoid the sale, we note that if the sale had taken place after the expiry of the non-alienation clause but before the Act had come into force, the sale would be valid. But however 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, we are of the view that the scheme of the Act is required to be read in tandem with the objects and reasons of the Act. As stated earlier the object of the Act 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 a double check which is in furtherance of the objects and reasons. 13. Section 4 of the Act would relate to prohibition of transfer of granted lands. Sub Section 2 of Section 4 starts with non-obstante clause inasmuch as no person shall after the commencement of the Act transfer or acquire by transfer any granted land without previous permission of the Government. We notice that in the present case the first sale has taken place on 7.5.1987 which is certainly after the Act has come into force on 1.1.1979. If the petitioner’s claim that the sale has to be treated as valid one, indeed he ought to have taken necessary permission from the Government as required under Section 4 (2) of the Act. We find that this exercise has not been done. If the petitioner’s claim that the sale has to be treated as valid one, indeed he ought to have taken necessary permission from the Government as required under Section 4 (2) of the Act. We find that this exercise has not been done. We are of the view that if the sale were to take place after the expiry of non-alienation period as stipulated in the grant before 31.12.1978, the same would be valid but however, if the sale takes place after 1.1.1979 it would be invalid, inasmuch as Section 4 (2) of the Act would be made applicable. 14. It might be a quirk of fate, but however that is how the Statute would work. There certainly should be a cut-off date and that is 1.1.1979. Indeed, in this regard the Apex Court was very emphatic in the case of MANCHEGOWDA V/S STATE OF KARNATAKA reported in AIR 1984 SC 1151 that all such sales which had taken place during the non-alienation period are certainly hit by the Act and insofar as the sales which had taken place after the non-alienation 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. This aspect is also covered by another ruling of the Apex Court in Dharma Naik’s case reported in 2008 AIR SCW 1312. Indeed the Apex Court has observed in the following terms. “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 fro which it was introduced. 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 fro 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 b some rich and affluent persons who took their lands either by paying a paltry sum or even without paying anything to them”. 15. 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 and after the non-alienation period is over. Section 4 of the Act would commence with a non-obstante clause which would necessarily mean that notwithstanding any transaction which had taken place at any point of time, if any sale takes place after the Act has come into force, that is after 1.1.1979, the purchaser is required to obtain necessary permission from the Government. Indeed the object of the 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 BANK’S STAFF UNION (MADRASS CIRCLE) V/S UNION OF INDIA reported in 2005 (7) SCALE 296 has observed that it is the cordinal rule of interpretation that objects and reasons of the Statute has to be looked into as an extrinsic aid to find out the Legislative intent only when the meaning of the 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 declared the intention of the Legislature and in such a case, it would not be permissible for the Court to interpret the Statute y examining the objects and reasons for the Statute in question. But if the words used in a Statute are clear and unambiguous then the Statute itself declared the intention of the Legislature and in such a case, it would not be permissible for the Court to interpret the Statute y examining the objects and reasons for the Statute in question. The smooth balance built with delicacy must always be maintained and 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 Manchegowda’s cas has upheld the validity of the Act. Indeed we notice that Section 4 of the Act therein was read down only to the extent that any sale which has taken place after the expiry of the non-alienation period before the Act has come into force are saved and also insofar as whether the purchaser has perfected his title by adverse possession. Having said so, we are of the view that in the present case the first sale itself which had taken place after the Act has come into force is invalid. 16. A contention is raised by Mr.angadi, submitting that as on 1.1.1997, the date on which petitioner purchased the property, the non-alienation period had also expired and hence, the petitioner has a valid title. Indeed, there is fallacy in the said contention. A subsequent purchaser who has purchased the property from his vendor whose title itself was defective cannot convey a better title. Indeed the title which the petitioner has acquired with any defect in the title of his vendor becomes his own. We notice that the first sale which has taken place on 7/5/1987 is only after the act has come into force, that is on 1/1/1979. We also notice that either the transferer or the transferee has not made any application to the government seeking permission for alienation as required under section 4(2) of the act. Hence, we are of the view that in the absence of any permission form the government for transfer of the granted land, the sale in favour of the first purchaser itself was defective. Hence, the petitioner who is the third purchaser in the row does not get a better title than his erstwhile vendor. Hence, we are of the view that in the absence of any permission form the government for transfer of the granted land, the sale in favour of the first purchaser itself was defective. Hence, the petitioner who is the third purchaser in the row does not get a better title than his erstwhile vendor. Hence, the question of law is correctly decided in Eranna’s case reported in ILR 2001 KAR 3136 with reference to the statute. 17. Even though a contention is raised that the petitioner has perfected his title by adverse possession, we notice that such a ground is not taken in the writ petition. But, nevertheless, since a contention is sought to be urged, we propose to deal with it. Indeed the decision of the Apex Court in the case if D N Venkarayappa & ANR versus State of Karnataka & others reported in AIR 1997 SC 2930 is the complete answer to the contention raised by the petitioner. Even otherwise we notice that the first sale has taken place in the year 1987. Even assuming that the plea of tacking can be imported in this case, the application was filed before the Assistant Commissioner seeking restoration on 18/12/1998, by then 12 years was not over. Contention of Mr. Angadi that the period which has been spent in the litigation also required to be included for the purpose of establishing adverse possession cannot be accepted. When an application is moved by the grantee seeking restoration, the time which is running is arrested. Even otherwise we notice that after the act having come into force on 1/1/1979 the land is resumed to the government. We also notice that the adverse possession, insofar as it relates to grant is against the state. The apex court in the case of R Chandeverappa & others versus State of Karnataka & others reported in (1995) 6 SCC 309 has dealt with this question and has observed that the appellant cannot plead adverse possession without first disclaiming his derivative title by virtue of which he came into possession. Thus we are of the view that the said contention of adverse possession also does not mean consideration. Hence, the following order: Petition is rejected. Rule is discharged.