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CASE NO.: Appeal (civil)  7782 of 2001

PETITIONER: Bhadrappa (D) By Lrs.

RESPONDENT: Tolacha Naik

DATE OF JUDGMENT: 08/01/2008

BENCH: Dr. ARIJIT PASAYAT & P. SATHASIVAM

JUDGMENT: J U D G M E N T [With Civil Appeal No.7799/2001]

Dr. ARIJIT PASAYAT, J.

Civil Appeal No. 7782 of 2001 1.      Heard learned counsel for the parties.

2.      Challenge in this appeal is to the order passed by a  Division Bench of the Karnataka High Court dismissing the  writ appeal filed under Section 4 of the Karnataka High Court  Act (in short the \021High Court Act\022).  Challenge in the appeal  was to the order passed by a learned Single Judge who had  dismissed the writ petition filed by the appellant-Bhadrappa.   After the death of Bhadrappa, his legal heirs were brought on  record and they are the appellants before this Court.

3.      Background facts in a nutshell are as follows:            The land in question was granted some time in the year  1955 in favour of one Gopya Naik who is referred hereinafter  as grantee. Saguvali Chit was issued on 11.10.1956.  Seetamma, widow of the grantee who was also the mother of  respondent No.3 sold the land in the year 1959 in favour of  one Gangappa who in turn sold the said land to Ahmad Pasha  and there was subsequent sale by Ahmad Pasha to  Bhadrappa. The land in question bears Survey No.106  measuring 3 acres and 5 guntas.  

4.      Proceedings were initiated on the basis of an application  that the alienation was hit by Section 4 of Karnataka  Scheduled Castes and Schedules Tribes (Prohibition of  Transfer of Certain Lands) Act, 1978 (in short the \021Act\022).

5.      Sections 4 and 5 of the Act read as follows:

\0234. Prohibition of transfer of granted lands.- (1)  Notwithstanding anything in any law, agreement,  contract or instrument, any transfer of granted land  made either before or after the commencement of  this 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.   (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.

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 (3) The provisions of sub-sections (1) and (2) shall  apply also to the sale of any land in execution of a  decree or order of a civil court or of any award or  order of any other authority.   5. Resumption and restitution of granted lands.-  (1) Where, on application by any interested person  or on information given in writing by any person or  suo-motu, and after such enquiry as he deems  necessary, the Assistant Commissioner is satisfied  that the transfer of any granted land is null and  void under sub-section (1) of section 4, he may,-   (a)     by order take possession of such land after  evicting all persons in possession thereof in  such manner as may be prescribed:   Provided that no such order shall be  made except after giving the person  affected a reasonable opportunity of  being heard;       (b)     restore such land to the original grantee or his  legal heir. Where it is not reasonably practicable  to restore the land to such grantee or legal heir;  such land shall be deemed to have vested in the  Government free form all encumbrances. The  Government may grant such land to a person  belonging to any of the Scheduled Castes or  Scheduled Tribes in accordance with the rules  relating to grant of land.   (1A) After an enquiry referred to in sub-section (1)  the Assistant Commissioner may, if he is satisfied  that transfer of any granted land is not null and  void pass an order accordingly.]    (2) Subject to the orders of the Deputy  Commissioner under section 5A, any order passed  under sub-sections(1) and (1A) shall be final and  shall not be questioned in any court of law and no  injunction shall be granted by any court in respect  of any proceeding taken or about to be taken by the  Assistant Commissioner in pursuance of any power  conferred by or under this Act.  

(3) For the purposes of this section, where any  granted land is in the possession of a person, other  then the original grantee or his legal heir, it shall be  presumed, until the contrary is proved, that such  person has acquired the land by a transfer which is  null and void under the provisions of sub-section (1)  of section 4.\024

6.      An order was passed in the proceeding under Section 5 of  the Act to the effect that the alienation had been effected  within the period of prohibition.  The appellant took the stand  that the land was not a free grant land.  It was a grant for  upset price. The authorities concluded that it was a free grant.   The writ petition was dismissed.     

7.      The stand before the learned Single Judge and the  Division Bench were reiterated.

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8.      Section 5(3) of the Act clearly provides that any person  other than the grantee or his legal heirs in possession of the  granted land, shall be deemed to be in possession under a  transfer which is null and void under Sections 4(1) and 4(2)  until and unless anything contrary is established.  Burden,  therefore, is on the person in possession to prove that his  possession was valid in accordance with law.  It was found  factually that the writ petitioner had failed to establish the  same.  The transfer in favour of Gangappa was in violation of  the prohibition of the Act. That being so, the High Court was  right in dismissing the writ petition and the writ appeal. In  Guntaiah and Ors. v. Hambamma and Ors. (2005 (6) SCC 228  at para 14) it was noted as follows: \023It is also pertinent to note that the prohibition  regarding alienation is a restrictive covenant  binding on the grantee. The grantee is not  challenging that condition. In all these  proceedings, challenge is made by the third  party who purchased the land from the  grantee. The third party is not entitled to say  that the conditions imposed by the grantor to  the grantee were void. As far as the contract of  sale is concerned, it was entered into between  the Government and the grantee and at that  time the third-party purchaser had no interest  in such transaction. Of course, he would be  entitled to challenge the violation of any  statutory provisions but if the grant by itself  specifically says that there shall not be any  alienation by the grantee for a period of 15  years, that is binding on the grantee so long as  he does not challenge that clause, more so  when he purchased the land, in spite of being  aware of the condition. The Full Bench  seriously erred in holding that the land was  granted under Rule 43-J and that the  Authorities were not empowered to impose any  conditions regarding alienation without  adverting to Section 4 of Act 2 of 1979. These  lands were given to landless persons almost  free of cost and it was done as a social welfare  measure to improve the conditions of poor  landless persons. When these lands were  purchased by third parties taking advantage of  illiteracy and poverty of the grantees, Act 2 of  1979 was passed with a view to retrieve these  lands from the third-party purchasers. When  Act 2 of 1979 was challenged, this Court  observed in Manchegowda v. State of  Karnataka  (SCC pp.   310-11, para 17)  \02317. Granted lands were intended  for the benefit and enjoyment of the  original grantees who happen to  belong to the Scheduled Castes and  Scheduled Tribes. At the time of the  grant, a condition had been imposed  for protecting the interests of the  original grantees in the granted  lands by restricting the transfer of  the same. The condition regarding  the prohibition on transfer of such  granted lands for a specified period,  was imposed by virtue of the specific  term in the grant itself or by reason  of any law, rule or regulation

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governing such grant. It was  undoubtedly open to the grantor at  the time of granting lands to the  original grantees to stipulate such a  condition the condition being a term  of the grant itself, and the condition  was imposed in the interests of the  grantee. Except on the basis of such  a condition the grantor might not  have made any such grant at all.  The condition imposed against the  transfer for a particular period of  such granted lands which were  granted essentially for the benefit of  the grantees cannot be said to  constitute any unreasonable  restriction. The granted lands were  not in the nature of properties  acquired and held by the grantees in  the sense of acquisition, or holding  of property within the meaning of  Article 19(1)( f ) of the Constitution.  It was a case of a grant by the owner  of the land to the grantee for the  possession and enjoyment of the  granted lands by the grantees and  the prohibition on transfer of such  granted lands for the specified  period was an essential term or  condition on the basis of which the  grant was made. It has to be pointed  out that the prohibition on transfer  was not for an indefinite period or  perpetual. It was only for a  particular period, the object being  that the grantees should enjoy the  granted lands themselves at least for  the period during which the  prohibition was to remain operative.  Experience had shown that persons  belonging to Scheduled Castes and  Scheduled Tribes to whom the lands  were granted were, because of their  poverty, lack of education and  general backwardness, exploited by  various persons who could and  would take advantage of the sad  plight of these poor persons for  depriving them of their lands. The  imposition of the condition of  prohibition on transfer for a  particular period could not,  therefore, be considered to  constitute any unreasonable  restriction on the right of the  grantees to dispose of the granted  lands. The imposition of such a  condition on prohibition in the very  nature of the grant was perfectly  valid and legal.\024  

Civil Appeal No.7799 of 2001:           

9.      In view of the position of law indicated in the connected  Civil Appeal No.7782 of 2001 this appeal is sans merit.

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10.     Above being the position, there is no merit in these  appeals which are accordingly dismissed with no order as to  costs.