TaxTMI 
TaxTMI 
TaxTMI 
2019 (4) TMI 2185
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.... objective with which the lands have been allotted is not defeated. We are concerned, in the present appeals, with the transfer of these lands to the appellant by all the eight (8) beneficiaries, in August and September, 1997, which were sought to be annulled by the orders of the competent authority, under The Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 (hereinafter referred to as the 'said Act'). 2. The grants made are on similar terms, and for the present controversy, clause 8 of the grant is material, which puts a condition of non-alienation for a period of fifteen (15) years. This clause appears to be in pursuance of Rule 9(i) of the Karnataka Land Grant Rules, 1969 (hereinafter referred to as the 'said Rules'), formulated in pursuance of the powers conferred under Section 197 of the Karnataka Land Revenue Act, 1964. The said Rule 9, to the extent applicable on the relevant date, reads as under: "9. Conditions of Grant:- (1) The grant of lands under these rules (for agricultural purposes) shall be subject to the following conditions namely:- (i) the grantee shall not alienate the land for a period of ....
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.... 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-section (1) and (2) shall apply also to the sale of any land in execution of a decree or order of a Civil Court or any award or order of any other authority." 4. An application was filed on 10.10.2005 by the villagers alleging that the sale deeds were illegal and have been executed without prior permission of the competent authority. This triggered off an inquiry into the transactions in question. 5. On inquiry, the Assistant Commissioner passed an order dated 5.5.2006, setting aside the sale deeds and directing restoration of the lands to the original allottees under Section 5 of the said Act. The appeal preferred against this order before the Deputy Commissioner was dismissed vide order dated 14.11.2006. The appellant assailed these orders in a writ petition filed before the Karnataka High Court, but that endeavour also fai....
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....action in question, is the insertion of the proviso vide GSR 169 dated 26.8.1993, with effect from 6.9.1993 (extracted aforesaid), which clearly stipulates that the permission to be granted within the window of five (5) to fifteen (15) years would also be subject to the provisions of the said Act. 8. In a nutshell, the contention of the learned senior counsel was that the issue, whether the permission was or was not granted becomes irrelevant as no such permission was required to be obtained after fifteen (15) years from the date of grant of land. 9. Learned counsel sought to draw strength from the observations of this Court in Manchegowda & Ors. v. State of Karnataka & Ors [(1984) 3 SCC 301] more specifically para 24. The said case dealt with a constitutional challenge laid to Sections 4 and 5 of the said Act. The challenge was repelled. As to the nature of controversy examined by the Court, it would be apposite to reproduce para 7 of the said judgment, which reads as under: "7. The validity of the Act has been challenged mainly because of the provisions contained in Sections 4 and 5 of the Act which purport to declare transfers of "granted land" made either before ....
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....anted lands has been perfected before the commencement of the Act. Since at the date of the commencement of the Act the title of such transferees had ceased to be voidable by reason of acquisition of prescriptive rights on account of long and continued user for the requisite period, the title of such transferees could not be rendered void by virtue of the provisions of the Act without violating the constitutional guarantee. We must, therefore, read down the provisions of the Act by holding that the Act will apply to transfers of granted lands made in breach of the condition imposing prohibition on transfer of granted lands only in those cases where the title acquired by the transferee was still voidable at the date of the commencement of the Act and had not lost its defeasible character at the date when the Act came into force. Transferees of granted lands having a perfected and not a voidable title at the commencement of the Act must be held to be outside the pale of the provisions of the Act. Section 4 of the Act must be so construed as not to have the effect of rendering void the title of any transferee which was not voidable at the date of the commencement of the Act." 11. T....
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....d have made inquiries and efforts so as to exercise the suo motu power within reasonable time. The action of the Joint Collector in exercising suo motu power after several years and not within reasonable per;iod and passing orders cancelling validation certificates given by the Tahsildar, as rightly held by the High Court, could not be sustained." The ratio, thus, is that such suo moto powers have to be exercised within a reasonable period of time. b. Situ Sahu & Ors. v. State of Jharkhand & Ors.[(2004) 8 SCC 340] - the exercise of power in respect of transactions, which required prior sanction of the Deputy Commissioner was again observed to be one which had to be exercised within a reasonable period of time. c. Chhedi Lal Yadav & Ors. v. Hari Kishore Yadav (Dead) through Legal Representatives & Ors.[(2018) 12 SCC 527]- the view expressed is the same as in the aforesaid two judgments in para 13, as under: "13. In our view, where no period of limitation is prescribed, the action must be taken, whether suo motu or on the application of the parties, within a reasonable time. Undoubtedly, what is reasonable time would depend on the circumstances of ....
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.... 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. To fulfil the purposes of the grant, the land even if it has been alienated, should be restored to the original grantee or his heirs. The Government of India has also been urging the State Government for enacting a legislation to prevent alienation of lands granted to Scheduled Castes and Scheduled Tribes by Government on the lines of the model legislation prepared by it and circulated to the State Government. Hence the Bill." 16. The objective being to prevent exploitation of the Scheduled Castes and Scheduled Tribes persons by more affluent persons, through the process of acquisition of the land, there was no reason whatsoever to read down the provisions of Section 4(2) of the said Act, based on the earlier Rule 9 of the said Rules, enacted under a differe....
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....er" hereinearlier. According to the learned counsel for the appellant, the prohibition imposed under Section 4 of the Act would not be applicable to the facts of the present case. As noted hereinearlier, the learned counsel, therefore, submitted that in view of the above, the High Court as well as the authorities below had committed an error in holding that the sale deed, having been executed and registered after the commencement of the Act, must be found to be null and void and that by the said sale deed, the right, title or interest in the granted land must be restored by the Assistant Commissioner, in the exercise of his power under Section 5 of the Act, to the respondents. 18. This submission of the learned counsel for the appellant was contested by the learned counsel appearing for the respondents. According to the learned counsel for the respondents, the transfer of the granted land must be hit by Section 4 of the Act as, admittedly, the sale deed was executed and registered after the commencement of the Act. The learned counsel for the respondents also contended that in view of the prohibition contained in Section 4 of the Act, even if the transfer was made before t....
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....egistered 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 prior permission from the Government. 21. 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." .... .... .... .... .... "24. Let us, therefore, consider whether any of the conditions is satisfied in the present case and thereby, whether, the transfer shall be null and void conveying or deeming ever to have conveyed no right, title or interest of such land by such transfer. So far as t....
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....y distinguished by the learned Single Judge. We are in agreement with the decision of this Court in Manchegowda [(1984) 3 SCC 301] but the scope of challenge by the petitioners in that decision was limited which was stated at para 7 of the said judgment, as follows: (SCC p. 306, para 7) "7. ... It may be noted that the validity of the Act insofar as it imposes prohibition on transfer of granted land after the commencement of the Act has not been challenged and the principal objection to the validity of the Act is taken because of the provisions in the Act seeking to nullify the transfers of granted lands effected before the commencement of the Act." Therefore, we are in full agreement with the views expressed by the learned Single Judge of the High Court that the scope of challenge by the petitioners in the aforesaid decision of this Court was limited and, therefore, that decision cannot be of any help to the appellant in the present case." b. Harishchandra Hegde v. State of Karnataka & Ors.[(2004) 9 SCC 780] - Once again, the case pertains to the same said Act and discusses the effect of Manchegowda & Ors. v. State of Karnataka & Ors.[(supra)] In that co....
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.... the permission to transfer land had been granted. The documents which were found to be forged, were in fact, suppressed. Such suppression, it was submitted, would disentitle the appellant to any relief whatsoever. 23. In support of his submission, learned senior counsel sought to refer to certain judicial pronouncements on the effect of suppression as under: a. K.D. Sharma v. Steel Authority of India Limited & Ors.[(2008) 12 SCC 481] - In para 37 of this judgment, a reference was made to the proposition as propounded by the King's Bench in the following terms: "37. In Kensington Income Tax Commrs. [(1917) 1 KB 486: 86 LJKB 257: 116 LT 136 (CA)] Viscount Reading, C.J. observed: (KB pp. 495-96) "... Where an ex parte application has been made to this Court for a rule nisi or other process, if the Court comes to the conclusion that the affidavit in support of the application was not candid and did not fairly state the facts, but stated them in such a way as to mislead the Court as to the true facts, the Court ought, for its own protection and to prevent an abuse of its process, to refuse to proceed any further with the examination of the merits. This is ....
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....ike to delve in the matter any further, on this aspect, which is really in the nature of a preliminary objection by the respondent-State. It is not necessary to non-suit the appellant on this ground itself, as we feel that the merits of the matter itself ought to be dealt with. 26. There is substance in the contention of the respondent-State that the appellant had throughout sought to make out a case based on prior permission by the competent authority. It was nobody's case that permission was not required to be obtained. At this stage of the civil appeal, without any pleadings being there, it is not even really open to the appellant to have pleaded the interpretation they so sought to plead. This really cannot be categorized as a legal plea alone, and that too raised at the fifth level of scrutiny in the hierarchy of proceedings. The appellant, really faced with a factual situation where the permissions do not exist, now sought to build another bridge to contend that be that as it may, no permission is required. Such a plea cannot be countenanced. 27. If we analyze the aforesaid plea also, we find no merit in the same. We cannot lose sight of the objective with which the sai....
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....r instrument, or for that matter in any law. Section 11 of the said Act further enforces this by giving the said Act an overriding effect over any other law. The said Section 11 reads as under: "11. Act to override other laws.- The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any custom, usage or contract or any decree or order of a Court, Tribunal or other Authority." 31. The aforesaid Section is applicable for grants made either before or after the commencement of the Act. The terms of the grant cannot be contravened, but the last part of sub-section (1) of Section 4 of the said Act makes any transfer in violation of sub-section (2) also null and void. Sub-section (2) of Section 4 of the said Act is crisp and clear in its terms, putting an absolute ban on transfer after the commencement of the Act, without previous permission of the Government. Thus, a bare reading of the provision makes it abundantly clear that it brooks no two interpretations. After the period of fifteen (15) years also, thus, permission was required to be taken. 32. The legal position enunciated....