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2004(1) Supreme 522
SUPREME COURT OF INDIA
(From Karnataka High Court)
S.B. Sinha & Arun Kumar, JJ.
Harishchandra Hegde -Appellant
versus
State of Karnataka & Ors. -Respondents
Civil Appeal No. 5385 of 1997
Decided on 18-12-2003
Counsel for the Parties :
For the Appellant : Girish Ananthamurthy and P.P. Singh, Advocates.
For the Respondent : Kavin Gulati and Sanjay R. Hegde, Advocates.
Held : By reason of an order passed under Section 4 of the Act, the lands are directed to be restored in the event the illegalities specified therein are discovered. The consequences contained in Section 5 of the Act applies automatically in the event an order under Section 4 of the Act is passed. Section 4 of the Act contains a non obstante clause. The said provision would, thus, apply notwithstanding anything contained in any agreement or any other Act for the time being in force. The Act is a special Act whereas the Transfer of Property Act is a general Act and in that view of the matter also Section 51 of the Transfer of Property Act will have no application and the consequences contained in Section 5 would prevail. (Para 9)
Section 51 of the Transfer of Property Act applies to inter vivos transfers. It, as noticed hereinbefore, does not apply to a transfer made by operation of law. If a judicial order is passed restoring the land back to a member of Scheduled Tribes in terms of the purport and object of the statute, the provisions of the Transfer of Property Act cannot be applied in such a case. The matter is governed by a special statute. Unless there exists a provision therein, an order passed thereunder cannot be supplanted or supplemented with reference to another statute. (Para 13)
ORDER
The short question which falls for consideration in this appeal arising out of a judgment and order dated 16.2.1996 passed by the High Court of Karnataka in Writ Appeal No. 1045 of 1992 is as to whether Section 51 of the Transfer of Property Act is applicable in the cases covered by Sections 4 and 5 of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 (the Act, for short).
2. On or about 1.5.1961, two acres of land in Survey No. 134/110 were granted by the Government of Karnataka in favour of one Smt. Gangamma. The appellant purchased the said land from her through a registered sale deed for valuable consideration on 13.9.1962 and allegedly invested a lot of money for improvements thereof. The Act came into force w.e.f. 1.1.1979.
3. By reason of Section 4 of the Act all the alienations made in contravention of the terms of Grant were declared as void and all such lands were resumed and restored to the original grantee in terms of Section 5 of the Act. On or about 11.9.1986, the original grantee made an application for initiation of a proceeding under Section 4 of the Act, in pursuance whereof the proceeding was initiated against the appellant. An order of restoration of the land in favour of the original grantee was made by the Assistant Commissioner on 29.5.1987. The appellant preferred an appeal before the Deputy Commissioner thereagainst which was also dismissed on 25.3.1989. The appellant thereafter filed a writ petition which was marked as Writ Petition No. 23216 of 1990 for a declaration that any order passed by the Assistant Commissioner under Section 5 of the Act for restoration of land would be subject to the right of the transferee to claim the value of the improvements as prescribed under Section 51 of the Transfer of Property Act. The said writ petition was dismissed by the learned Single Judge. The writ appeal filed by the appellant was also dismissed by reason of an order dated 16.2.1996.
4. The learned counsel appearing on behalf of the appellant would submit that having regard to the fact that the appellant herein purchased the land in question as far back as on 13.9.1962, he is entitled to the benefit of Section 51 of the Transfer of Property Act.
Sections 4 and 5 of the Act read as under:
"Section 5. Prohibition of transfer of granted land.-(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.
(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 any award or order of any other authority.
Section 5.-Resumption or 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 from all encum
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