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Karnataka High Court
K. BHIMIAH,K. S. PUTTASWAMY
Laxmamma - Appellant
Versus
State of Karnataka - Respondent
Writ Petns. Nos. 10674, 10710, 14026, 16439, 18842, 22387. 23024 of 1980: 3250, 17567, 17568 of 1981 : 16663 and 17101 to 17103 of 1982
Decided On : 01/10/1983
Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 (Karnataka Act 2 of 1979) - Constitutional validity - Conditions imposed in the grant certificates - Whether void and unenforceable - Applicability of the Rule against Perpetuity - Whether a condition imposed touching on alienation if not authorised by law then in force, is void in its entirety or void only to the extent it violated the law - Scope and ambit of Rule 29-A of the Karnataka Land Grant (Amendment) Rules, 1974 - Period of alienation - Whether to be computed from the date of grant or from the date of issue of the grant certificate to the grantee - Whether an Assistant Commissioner can authorise his subordinates like the Tahsildar to execute his order.
Fact of the Case:
The petitioners, as purchasers from the grantees or their alienees, asserted that they are innocent purchasers. They urged that the conditions imposed or provided by law defeating their rights and voiding the transfers in their favour, were all void and non est. On these premise they urged that the orders voiding the transfers in their favour are illegal and unjustified.
Finding of the Court:
1. The conditions like - (i) that a grantee shall not alienate the land forever or a permanent restraint on alienation; (ii) that the alienation, if any, shall only be to the members of SC/ST: (iii) that an alienation shall not be made without obtaining prior permission of Government or the authorised officer; and (iv) that a grantee shall not alienate for a limited period except in favour of Government or a Co-operative Society and cultivate the same personally, were not void and unenforceable. 2. A condition imposed touching on alienation if not authorised by law then in force, is void in its entirety and not void only to the extent it violated the law. 3. Rule 29-A of the Karnataka Land Grant (Amendment) Rules, 1974 has the effect of deleting the conditions imposed on all earlier grants made prior to that date. 4. The period of alienation should be computed from the date of issue of the grant certificate to the grantee and not from the date of grant. 5. An Assistant Commissioner cannot authorise his subordinates like the Tahsildar to execute his order.
Issues: 1. Whether the conditions like - (i) that a grantee shall not alienate the land forever or a permanent restraint on alienation; (ii) that the alienation, if any, shall only be to the members of SC/ST: (iii) that an alienation shall not be made without obtaining prior permission of Government or the authorised officer; and (iv) that a grantee shall not alienate for a limited period except in favour of Government or a Co-operative Society and cultivate the same personally, were void and unenforceable? 2. Whether a condition imposed touching on alienation if not authorised by law then in force, is void in its entirety or void only to the extent it violated the law? 3. What is the true scope and ambit of Rule 29-A of the Karnataka Land Grant (Amendment) Rules, 1974? Whether the said Rule has the effect of deleting the conditions imposed on all earlier grants made prior to that date? 4. Whether the period of alienation should be computed from the date of grant or from the date of issue of the grant certificate to the grantee ? 5. Whether an Assistant Commissioner can authorise his subordinates like the Tahsildar to execute his order?
Ratio Decidendi: 1. The legal principle of rule against perpetuities or that an absolute restraint on alienation being opposed to public policy is void as has been incorporate in Section 10 of the T.P. Act can hardly be doubted. But, that legal principle has always been held to be inapplicable to Government grants. 2. The Crown Grants Act is only a declaratory Act and has been enacted only to remove doubts. Even if the Government Grants Act was not in force in any of the integrating areas, or the said Act has been extended by the new State with effect from 14-6-1973 by enacting the Government Grants. (Karnataka Extension) Act, 1972, that does not really make any difference to hold that the Rule against perpetuities, has no application to Government Grants. 3. The restrictions or conditions to be imposed must only be in conformity with law regulating the grants and imposition of conditions. 4. Any condition imposed to the extent it is in derogation of law, would be void and the conditions to the extent they are permitted by law would be valid. 5. Rule 29A which opens with a non obstante clause, declares that the provisions of any Rules that provided for a prohibition of alienation only to members of SC/ST shall cease to operate from the date that rule comes into force. 6. The construction suggested by the learned counsel for the petitioners on the Rules and more so on Rule 43(B)(5) of the Mysore Land Revenue Rules before their amendment in 1960, is too literal and will not carry out the scheme and object of the Rules. 7. The Act and the Rules exclusively confer power on the AC to make orders and execute them. The Act and the Rules do not empower the AC to delegate his powers to any of his subordinates and call upon them to execute his orders.
Final Decision: 1. The challenge of the petitioners to the Act is rejected. 2. The orders impugned in Writ Petitions Nos. 14026 and 16439 of 1980 are dismissed in so far as they relate to the validity of the Act. 3. The orders impugned in Writ Petitions Nos. 10674, 18842, 22387, 23024 of 1980 and 16663 of 1982 are quashed in so far as they direct the Tahsildars to take possession of the lands. 4. The eviction notices Nos. (a) LND 2 CR 4/80-81 dated 11-7-1980 (Annexure-C in W.P. No. 18842 of 1980) and (b) LND (2) 14/82-83 dated 17-4-1982 (Annexure-E in W. P. No. 16663 of 1982) are quashed. 5. The orders impugned in Writ Petitions Nos. 10710 of 1980, 3250, 17567, 17568 of 1981 and 17101 to 17103 of 1982 are dismissed and the rule is discharged. 6. The operation of the order is stayed for a period of three months from the date of the order.
PUTTASWAMY, J. : - On a reference made, these cases are posted before us for disposal.
2. As the petitioners in all these cases have challenged the validity of one and the same enactment and the different orders made thereunder in which various interconnected questions arise for consideration, they can conveniently be disposed of by a common order. We therefore propose to dispose of them by a common order.
3. On 1-11-1956, the new State of Mysore now called 'Karnataka' was formed comprising the territories referred to in S.7. States Reorganisation Act, 1955 (Central Act 37 of 1956).
4. Prior to 15-8-1947, on which day India attained independence and thereafter, the respective Governments of the erstwhile States of the new Karnataka State, had introduced various ameliorative measures for the advancement of the members of the Scheduled Castes and Scheduled Tribes (hereinafter referred to as SC/ST) and one of them was Government lands were granted to them free of cost or at concessional price imposing restrictions on the rights of grantees to dispose of the lands granted to them. The new State also has pursued the same policy with greater vigour.
5. Before independence and thereafter also large extent of lands had been granted to SC/ST by the erstwhile States and the new State also, with the fond hope that they would retain them, personally cultivate and improve their economic conditions. But, in actual practice, it was found that large extent of lands had been sold by the members of SC/ST for paltry sums and possession delivered to the purchasers in contravention of the terms of the grant made to them. In order to remedy that evil, the State enacted the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 Karnataka Act 2 of 1979 hereinafter referred to as the Act) which came into force on 1-1-1979.
6. On the passing of the Act, a large number of alienees that had received show cause notices from the Assistant Commissioners of the areas (hereinafter referred to as the AC) or the orders made by them, challenged the validity of the Act. the show cause notices or the orders thereto made against them. The petitioners against whom final orders have been made by the respective A.Cs. have challenged the Act and the orders made against them.
7. Before we formulate the general or special questions that arise for determination in these cases in so far as they relate to the orders impugned if is necessary to briefly notice the facts of the cases.
8. Writ Petition No. 10674 of 1980 : -
(a) On 2-4-1952 land bearing Sy. No. 432/A measuring 0.64 cents of Dasanur village, Siraguppa Taluka. Bellary District which was then part of the erstwhile Madras State but was merged in the erstwhile State of Mysore w.e.f. 1-101953 under the Andhra States Act of 1953 was granted to respondent 3. a member of SC with a condition that it should not be alienated to any person who was not a member of a depressed class which class is designated as a SC.
(b) On 4-2-1961 respondent 3 sold the said land to the petitioner for valuable consideration from which date she is in possession of the same.
(c) Under the Act the AC issued a show cause notice to the petitioner and considering the objections filed by her, he has made an order on 22-1-1980 (Annexure A) voiding the sale on the ground that she was not a SC. In that order the A.C. has also directed the Tahsildar to take possession of the land and handover the same to respondent 3. But, in pursuance of the interim order of stay granted by this Court, the possession of the petitioner has not been disturbed.
9. Writ Petition No. 10710 of 1980: -
(a) On 13-02-1951 an extent of 3 acres in Sy. No. 38 of Singlikapura village, Koratagere Taluk, Tumkur District was granted to respondent 3 a member of SC with a condition that it should not he alienated by him forever. But in contravention of that clause respondent 3 sold the said land to the petitioner on 3-5-1961.
(b) On 12-6-198
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