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2020 DIGILAW 1047 (KAR)

Shankaragouda v. Deputy Commissioner, Dharwad

2020-06-11

S.SUJATHA, SHIVASHANKAR AMARANNAVAR

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JUDGMENT S.Sujatha, J. - This intra Court appeal is directed against the order of the learned Single Judge dated 11.11.2013 passed in W.P.No.47742/2004 whereby the writ petition has been rejected confirming the order of the Deputy Commissioner, directing the authorities to resume and restore the subject lands in accordance with law within a time frame. 2. Succinctly stated the facts are that the entries made in the revenue records based on the Will dated 27.02.1991 said to have been executed by one Sri Basappa Madar relating to the lands bearing R.S.No.315/B measuring 13 acres 23 guntas, R.S.No.385/4 measuring 1 acre 32 guntas and R.S.No.339/5 measuring 20 guntas situated at Managundi village, taluk and district Dharwad, qua the provisions of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 (for short 'the Act') was the subject matter of the proceedings before the Assistant Commissioner, Dharwad/respondent No.2 pursuant to the application filed by respondents 3 to 5. Respondent No.2 has held that the provisions of the Act are not applicable to the facts of the present case more particularly, Sections 3 (1)(b) and 3 (1)(e) of the Act. Being aggrieved, the respondents 3 to 5 had approached the respondent No.1/Deputy Commissioner, Dharwad, who has set aside the order of the respondent No.1 and directed the authorities to resume the subject lands to the Government, thereafter, to restore the lands to the legal heirs of the original grantees in terms of Section 5 (b) of the Act. Challenging the said order, Writ Petition No.47742/2004 was preferred by the appellant before this Court. Learned Single Judge having dismissed the writ petition, the appellant is before this Court. 3. Sri.G.I.Gachchinmath, learned counsel appearing for the appellant argued that the learned Single Judge failed to appreciate the provisions of Sections 3 (1) (b) and 3 (1) (e) of the Act in a right perspective. The wrong interpretation of the phrase 'transfer' as employed in Section 3 (1) (e) made by the Deputy Commissioner and confirmed by the learned Single Judge certainly calls for interference by this Court. Placing much emphasis on Section 3 (1) (e), it was submitted that 'testamentary disposition' being excluded, Section 4 of the Act is not applicable to the facts and circumstances of the case. The disputed land bearing R.S.No.315/B was originally granted to Sri Hanumantappa s/o Siddawwa Madar on 21.03.1963. Placing much emphasis on Section 3 (1) (e), it was submitted that 'testamentary disposition' being excluded, Section 4 of the Act is not applicable to the facts and circumstances of the case. The disputed land bearing R.S.No.315/B was originally granted to Sri Hanumantappa s/o Siddawwa Madar on 21.03.1963. Similarly, R.S.No.385/4 and 339/15 were inam lands (service inam) coming under the provisions of the Karnataka Village Offices Abolition act, 1961, allotted to one Sri Raja @ Babya s/o Dodda Raju Holer. The said Hanumantappa inherited the lands bearing R.S.Nos.385/4, 339/15 along with R.S.No.315/B. He died on 14.01.1978 as a bachelor. 4. It was submitted that on change of mutation entries in the revenue records during the year 1991 Sri Basappa s/o Mayawwa Madar s/o elder brother of Hanumanthappa continued to be the owner of the lands in question. The said Basappa died on 01.03.1992 having no issues and wife, being a bachelor. Based on the Will dated 27.02.1991 executed by deceased Basappa, the appellant claimed rights over the lands in question. The Tahsildar has entered the name of the appellant in the revenue records. 5. It was submitted that in view of the interference of one Smt.Nagawwa with the peaceful possession and enjoyment of the lands in question, the appellant was constrained to file a suit in O.S.No.413/1997 before the learned Principal Civil Judge (Jr.Dn.), Dharwad, against Smt.Nagawwa, for declaration and injunction. The trial Court vide judgment and decree dated 28.10.1997 decreed the suit and the said decree has attained finality. Such being the position, respondents 3 to 5 claiming to be the legal heirs of the deceased Basappa, filed an application under the provisions of the Act, seeking for restoration of the lands in their names. 6. It was argued that the Assistant Commissioner has rightly rejected the claim of the applicants. However, the Deputy Commissioner misinterpreting the provisions of Section 3 (1) (b) and (e) of the Act, has set aside the order of the Assistant Commissioner directing the authorities to resume and restore the lands in terms of Section 5 of the Act. Learned Single Judge without appreciating the arguments advanced inasmuch as the non-applicability of the provisions of the Act to the facts and circumstances of the case has confirmed the order of the Deputy Commissioner. 7. Learned Single Judge without appreciating the arguments advanced inasmuch as the non-applicability of the provisions of the Act to the facts and circumstances of the case has confirmed the order of the Deputy Commissioner. 7. Learned Additional Government Advocate appearing for the respondents 1 and 2 submitted that the provisions of the Act are squarely applicable to the facts and circumstances of the case. A conjoint reading of Sections 3 (1) (b), 3 (1) (e) and 4 of the Act makes it clear that the transfer of the granted lands on the basis of the alleged Will said to have been executed by deceased Basappa Madar is not valid in the eye of law. 8. Sri Rajashekhar Burji, learned counsel appearing for respondents 3 to 5 supporting the arguments of the learned Additional Government Advocate submitted that the Deputy Commissioner has rightly decided the issue which has been confirmed by the learned Single Judge. As such, the same requires to be approved by this Court. 9. We have given our thoughtful consideration to the arguments advanced by learned counsel appearing for the respective parties and perused the material on record. 10. As could be seen, the epicenter of the dispute relates to the interpretation of Section 3 (1) (e) of the Act and the same is extracted hereunder for ready reference. "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. A reading of this provision makes it clear that transfer means a sale, gift, exchange, mortgage with or without possession lease or any other transaction, however a partition among members of a family or a testamentary disposition is excluded. 12. A reading of this provision makes it clear that transfer means a sale, gift, exchange, mortgage with or without possession lease or any other transaction, however a partition among members of a family or a testamentary disposition is excluded. 12. The statement of objects and reasons of the enactment envisages that the non-alienation clause contained in the existing Land Grant Rules and the provisions for cancellation of grants where the land is alienated in contravention of the above said provision are found not sufficient to help the Scheduled Castes and Scheduled Tribes grantees whose ignorance and poverty have been exploited by persons belonging to the affluent and powerful sections to obtain sales or mortgages either for a nominal consideration or for no consideration at all and they have become the victims of circumstances. In order to fulfill the purposes of the grant, the land even if it has been alienated should be restored to the original grantee or his heirs. 13. Under the Scheme of the Act, Section 4 prohibits transfer of granted land. Section 4 (1) contemplates 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, 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. Sub section (2) provides that no person shall, after the commencement of Act, transfer or acquire by transfer any granted land without the previous permission of the Government. In this context, definition of 'transfer' as provided under Section 3 (1) (e) plays an important role. 14. Section 4 (2) carves out an exception to sub Section (1). After the commencement of the Act, transfer or acquire by transfer in granted land without the previous permission of the Government is null and void. In the guise of getting a transfer through testamentary disposition by a stranger to the family of the grantee, Section 4 (2) cannot be violated. It is true that a device or a bequest under a Will for disposition of rights operates posthumously and such right would come into effect after the death of the testator however, the same would not validate the transfer much against the spirit of Section 4 (2) of the Act. 15. It is true that a device or a bequest under a Will for disposition of rights operates posthumously and such right would come into effect after the death of the testator however, the same would not validate the transfer much against the spirit of Section 4 (2) of the Act. 15. The object of the legislature in enacting the Act is paramount in analyzing the provision. The Hon'ble Apex Court while interpreting the word "or" occurring in Rule 18 of the Central Excise Rules, 2002, observed that no literal interpretation can be given to the word 'or' occurring therein as that leads to various disastrous results. What was intended by the Rule maker in the Scheme of things and to carry out the objectives has to be considered. It has categorically held that the word 'or' is normally disjunctive and "and" is normally conjunctive, there may be circumstances where these words are to be read as vice versa to give effect to manifest intention of the Legislature as disclosed from the context. However, wherever use of such a word viz. "and"/"or" produces unintelligible or absurd results, the Court has the power to read the word "or" as "and" and vice versa to give effect to the intention of the Legislature which is otherwise quite clear. The earlier judgments of the Hon'ble Apex Court in the case of MAZAGAON DOCK LTD., VS. CIT AND EXCESS PROFITS TAX, (1958) AIR SC 861 and JAYALALITHA VS. UNION OF INDIA, (1999) 5 SCC 138 are referred therein. In this context, 'or' has to be read in conjunction with the family partition. 16. At this juncture, it is beneficial to refer to the judgment of the Hon'ble Apex Court in the case of SATYAN VS. DEPUTY COMMISSIONER AND OTHERS in Civil Appeal Nos.2976-2983/2019 disposed of on 30.04.2019 wherein the Hon'ble Apex Court considering Section 4 of the Act has held that Section 4 (2) deals with the transfer of the granted land after the commencement of the Act i.e., after 01.01.1979. For the purpose of Section 4 (2), the Court must be satisfied that sale deed was executed and registered after the commencement of the Act, and the same was executed and registered without seeking prior permission of the State Government. For the purpose of Section 4 (2), the Court must be satisfied that sale deed was executed and registered after the commencement of the Act, and 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 permission of the Government nor can the grantee transfer it without seeking prior permission from the Government. 17. The Scheme of the Act as also the objects and reasons for which it was introduced would indicate that the objective is to prevent alienation of lands granted to Scheduled Castes and Scheduled Tribes by Government. Such prevention cannot partake the colour of testamentary disposition to a stranger other than the family members in order to come out of the rigour of Section 4 (2) of the Act. 18. The expression 'transfer' in Section 3 (1) (e) of the Act has to be given a meaning as to promote the object of the enactment. The deceased grantee can transfer his rights only to the family members through partition or testamentary disposition by legitimate kinship. If the granted lands are bequeathed to the strangers who may acquire a right over the granted land in terms of the device under a Will, it would certainly defeat the purpose and object of the Act. 19. If the argument of the learned counsel for the appellant is accepted then what is excluded in Section 3 (1) (e) of the Act is a partition among members of the family or a testamentary disposition independent of such members of the family. In other words, 'testamentary disposition' has no nexus with the 'partition among members of the family'. We are afraid to accept this interpretation as the same runs contrary to the purpose and object of the Act vis- -vis prohibition of transfer of granted lands contemplated in Section 4 of the Act. Such an interpretation would lead to absurdity. 20. It is well settled law that the purposive interpretation of the Act would be the best tool for ascertaining the intent of the Legislature. Learned Single Judge has rightly interpreted the expression 'transfer' defined in Section 3 (1) (e) of the Act in consonance with the objective of the enactment. 21. Such an interpretation would lead to absurdity. 20. It is well settled law that the purposive interpretation of the Act would be the best tool for ascertaining the intent of the Legislature. Learned Single Judge has rightly interpreted the expression 'transfer' defined in Section 3 (1) (e) of the Act in consonance with the objective of the enactment. 21. In terms of Section 3 (1) (b) of the Act, '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 person under the relevant law for the time being in force relating to agrarian reforms or land ceilings or abolition of imams, other than that relating to hereditary offices or rights and the word 'Granted' shall be construed accordingly. Thus, even the lands granted under the abolition of inams, other than that relating to hereditary offices would certainly come within the ambit of granted lands. In view of the aforesaid, the arguments of the learned counsel for the appellant that the lands in R.S.Nos.385/4 and 339/5 are not granted land requires to be negated. 22. Similarly, in view of the insertion of Section 5-A by Act No.3/1984 to the Act, any person aggrieved by an order passed after the commencement of the Act by the Assistant Commissioner to take possession of land under clause (a) sub-Section (1) of Section 5 or to restore the land under clause (b) of the said sub-Section may prefer an appeal to the jurisdictional Deputy Commissioner. Hence, the findings of the learned Single Judge on these aspects deserve to be approved. 23. The Deputy Commissioner after holding that the applicants/respondents 3 to 5 have failed to prove themselves as the legal heirs of the deceased Basappa Madar, directed the Assistant Commissioner to resume the subject lands to the Government as per Section 5 of the Act. The Tahsildar, Dharwad, has been directed to take possession of the properties in question and to make needful changes/amendments in the village records. We make it clear that after resuming the lands, restoration of the properties shall be made by the authorities in accordance with law, only to the legal heirs of the original grantee if any, not otherwise. With the aforesaid clarification, we confirm the order of the learned Single Judge. In the result, writ appeal stands dismissed.