CUSTOM SEARCH

OBSERVATIONS OF COURT’S REGARDING SC/ST PTCL ACT CASES

B.K. MUNIRAJU v. STATE OF KARNATAKA & ORS
CASE NO.: Appeal (civil) 1320 of 2008
DATE OF JUDGMENT: 15/02/2008
BENCH: Tarun Chatterjee & P. Sathasivam

We have already referred to the recitals in the document produced before the High Court which though titled as certificate of grant/Saguvali chit, various terms and conditions make it clear that the land was purchased by Motappa in a public auction on payment of a price for Rs.408.12. In addition, the two authorities as well as the High Court adverted to the revenue extract and concluded that it was not a "granted land" and it was purchased in a public auction on payment of a price. In the light of the factual conclusion, we are satisfied that the High Court has rightly refused to quash the orders of the said authorities and dismissed the writ petition. If the factual finding that the subject-matter of the land was a "granted land" undoubtedly it attracts bar under Section 4 of the Act and follow the conditions as stated in Rule 43 (1) (5) and (8). (17)



The document in question which is filed as Annexure P-3, has been styled or titled as "Certificate of Grant". In order to know the real nature of the document, one has to look into the recitals of the document and not the title of the document. The intention is to be gathered from the recitals in the deed, the conduct of the parties and the evidence on record. It is settled law that the question of construction of a document is to be decided by finding out the intention of the executant, firstly, from a comprehensive reading of the terms of the document itself, and then, by looking into to the extent permissible : the prevailing circumstances which persuaded the author of the document to execute it. With a view to ascertain the nature of a transaction, the document has to be read as a whole. A sentence or term used may not be determinative of the real nature of transaction. Reference in this regard can be made to the following cases i.e. Vidhyadhar vs. Manikrao & Anr., (1999) 3 SCC 573, Subbegowda (Dead) by LR. vs. Thimmegowda (Dead) by LRs., (2004) 9 SCC 734 and Bishwanath Prasad Singh vs. Rajendra Prasad & Anr., (2006) 4 SCC 432.



BHADRAPPA (D) BY LRS. v. TOLACHA NAIK
CASE NO.: Appeal (civil) 7782 of 2001
DATE OF JUDGMENT: 08/01/2008
BENCH: Dr. ARIJIT PASAYAT & P. SATHASIVAM

In Guntaiah and Ors. v. Hambamma and Ors. (2005 (6) SCC 228 at para 14) it was noted as follows: "It 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.


When Act 2 of 1979 was challenged, this Court observed in Manchegowda v. State of Karnataka (SCC pp. 310-11, para 17) "17.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 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."



KALIYAMMA & ORS. v. DEPUTY COMMNR.CHITRADURGA DISTT. & ORS.
CASE NO.: Appeal (civil) 7875-7876 of 2001
DATE OF JUDGMENT: 03/01/2008
BENCH: Dr. ARIJIT PASAYAT & P. SATHASIVAM


The Assistant Commissioner came to hold that when the grant was in favour of general category, the allotment was in Form-I and when it is in the name of persons belonging to the Schedule Castes and Schedule Tribes, it is in Form II.

Legal representatives of the grantee filed appeal under Section 5A of the Act before the Deputy Commissioner. The said Authority allowed the appeal and set aside the order of the Assistant Commissioner holding that in these cases grant has been made during 1957 under the Land Revenue Code and the right of possession in respect of the grantee is limited. It was noticed that there was a condition not to alienate the land in question for a period of 10 years. In these cases the alienation took place much before completion of the ten years' period. Since the land was alienated during the non-alienable period, the land vested with the Government. It was also noticed that the period would be 30 years (for adverse possession) and not 12 years as contented.

The matter was challenged by the appellants before the learned Single Judge who dismissed the writ petition but inter alia directed as follows: "Whether respondents 2 & 3 have been the legal heirs of the grantee either as sons or adopted sons or in any manner under the law. That question has yet to be decided by the Assistant Commissioner when he has to restore the land to the grantee or his heirs in pursuance of the appellate order. Before actual delivering and restoring possession, the Assistant Commissioner should examine this question and if grantee or heirs are found in possession, the possession has to be restored to them. But if it is not practicable and possible to restore possession of the granted land to the grantee or his heirs under Section 5(1)(b) later part will automatically stand vested in the Government."


MANCHEGOWDA ETC. v. STATE OF KARNATAKA ETC.PETITIONER: MANCHEGOWDA ETC.
DATE OF JUDGMENT17/04/1984
AIR 1984 SC 1151

Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978, Sections 4 & 5, constitutional validity-Whether the prohibition of transfer of granted lands and Resumption or restitution thereof without payment of compensation or providing any appeal for such orders of resumption violates Art. 19 (1) (f), 31 and 31A of the Constitution-Whether making such special provisions only with regard to Scheduled Castes and Scheduled Tribes to the exclusion of persons belonging to other communities, violated Art. 14 of the Constitution.

The High Court of Karnataka for reasons recorded as quoted below in the Judgment upheld the validity of the Act and dismissed the petitions.

Sections 4 & 5 of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfers of Certain Lands) Act, 1978 is constitutionally valid.

However, the provisions of the Act must be read down and held that the Act will apply to transfers of granted lands made in breach of the condition imposing prohibition of 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 land 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. S. 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. Granted lands which had been transferred after the expiry of the period of prohibition do not come within the purview of the Act, and cannot be proceeded against under the provisions of this Act.

The provisions of the Act make this position clear, as ss. 4 & 5 become applicable only when granted lands are transferred in breach of the condition relating to prohibition of such lands. Granted lands transferred before the commencement of the Act and not in contravention of prohibition on transfer are clearly beyond the scope and purview of the present Act. Also in case where granted lands had been transferred before the commencement of the Act in violation of the condition regarding prohibition on such transfer and the transferee who had initially acquired only a voidable title in such granted lands had perfected his title in the granted lands by prescription by long and continuous enjoyment thereof in accordance with law before the commencement of the Act, such granted lands would also not come within the purview of the present Act, as the title of such transferees to the granted 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. the provisions of appeal has been incorporated by the Amending Act which received the assent of the Governor on the 29th February, 1984 and first came to be published in the Karnataka Gazette Extraordinary on the 3rd day of March, 1984, the Deputy Commissioner to whom the appeal will be presented will no doubt take this fact into consideration in deciding the question of limitation in regard to any appeal which may be filed against an order of the Assistant Commissioner; if any appeal is preferred within a period of three months from the date the amended provision conferring the right of appeal came into force, the Deputy Commissioner taking into consideration the fact that a period of three months has been prescribed for preferring an appeal from the date of the order of the Assistant Commissioner, may have no difficulty in entertaining the appeal by condoning the deal under s. 5 of the Limitation Act in terms of the power conferred on the Deputy Commissioner under the said s. 5A, provided the Deputy Commissioner is satisfied that the appeal is otherwise maintainable and the interest of justice requires that the appeal should be entertained and not be thrown out on the ground of limitation.


It is no doubt true that before the passing of the present Act any transfer of granted land in breach of the condition relating to prohibition on such transfer would not have the effect of rendering the transfer void and would make any such transfer only voidable. But the State, consistently with the directive principles of the Constitution, has made it a policy and very rightly, to preserve, protect and promote the interest of the Scheduled Castes and Scheduled Tribes which by and large form the weaker and poorer sections of the people in our country. This may be said to be the declared policy of the State and the provisions seeking to nullify such transfers is quite in keeping with the policy of the State which may properly be regarded as public policy for rendering social and economic justice to these weaker sections of the society.


In pursuance of this policy, the legislature is undoubtedly competent to pass an enactment providing that transfers of such granted lands will be void and not merely voidable for properly safeguarding and protecting the interests of the Scheduled Castes and Scheduled Tribes for whose benefit only these lands had been granted. Even under the Contract Act, any Contract which is opposed to public policy is rendered void.


Even in the absence of any such statutory provisions, the transfer of granted lands in contravention of the terms of the grant or in breach of any law, rule or regulation covering such grant will clearly be voidable and the resumption of such granted lands after avoiding the voidable transfers in accordance with law will be permitted. Avoidance of such voidable transfers and resumption of the granted lands through process of law is bound to take time Any negligence and delay on the part of the authorities entitled to take action to avoid such transfers through appropriate legal process of law is bound to take time. Any negligence and dealy on the part of the authorities entitled to take action to avoid such transfers through appropriate legal process for resumption of such grant may be further impediments in the matter of avoiding such transfers and resumption of possession of the granted lands. Prolonged legal proceedings will undoubtedly be prejudicial to the interests of the members of the Scheduled Castes and Scheduled Tribes for whose benefit the granted lands are intended to be resumed.

As transfers of granted lands in contravention of the terms of the grant or any law, regulation or rule governing such grants can be legally avoided and possession of such lands can be recovered through process of law the Legislature for the purpose of avoiding delay and harassment of protracted litigation and in furthering its object of speedy restoration of these granted lands to the members of the weaker communities is perfectly competent to make suitable provision for resumption of such granted lands by stipulating in the enactment that transfers of such lands in contravention of the terms of the grant or any regulation, rule or law regulating such grant will be void in providing a suitable procedure consistent with the principles of natural justice for achieving this purpose without recourse to prolonged litigation in Court in the larger interests of benefiting the members of the Scheduled Castes and Scheduled Tribes.



Any person who acquires such granted land by transfer from the original grantee in breach of the condition relating to prohibition on such transfer must necessarily be presumed to be aware of the prohibition imposed on the transfer of such granted land, and they cannot be considered to be a bona fide purchaser for value; and every such transferee acquires to his knowledge only avoidable title to the granted land. The title acquired by such transfer is defeasible and is liable to be defeated by an appropriate action taken in this regard. If the Legislature under such circumstances seek to intervene in the interests of these weaker sections of the community and choose to substitute a speedies and cheaper method or recovery of these granted lands which were otherwise liable to be resumed through legal process, it cannot be said that any vested rights of the transferees are affected. Transferees of granted lands with full knowledge of the legal position that the transfers made in their favour in contravention of the terms of grant or any law, rule or regulation governing such grant are liable to be defeated in law, cannot and do not have in law or equity, a genuine or real grievance that their defeasible title in such granted lands so transferred is, in fact, being defeated and they are being dispossessed of such lands from which they were in law liable to be dispossessed by process of law.



The position will, however, be somewhat different where the transferees have acquired such granted lands not in violation of any term of the grant of any law regulating such grant as also where any transferee who may have acquired a defeasible title in such granted lands by the transfer thereof in contravention of the terms or the grant or any law regulating such grant has perfected his title by prescription of time or otherwise.


But where the transferee acquires only a defeasible title liable to be defeated in accordance with law, avoidance of such defeasible title which still remains liable to be defeated in accordance with law at the date of commencement of the Act and recovery of the possession of such granted land on the basis of the provisions contained in ss. 4 & 5 of the Act cannot be said to be constitutionally invalid and such provision cannot be termed as unconscionable, unjust and arbitrary.


Granted lands were intended for the benefit and enjoyment of the original grantees who happen to belong to the Scheduled Castes and Scheduled Tribes. 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 or property within the meaning of Art. 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. 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. 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 bona fide the said 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.



The transferees of the granted lands from the original grantees, acquired the lands improperly and illegally in contravention of the condition imposed on such transfers. Such transferees must have been aware and must in any event be deemed to have been aware of the condition regarding the prohibition on transfer and they cannot be considered to be bona fide transferees for value. Such persons acquired in the granted lands only avoidable title which was liable to be defeated and possession of such lands could be resumed from such transferees. Such a person who only acquires a defeasible legal right cannot make a grievance of any violation of Art. 19 (1) (f) of the Constitution, when the defeasible legal right is, in fact, defeated by appropriate legal action or by any suitable provision enacted in an Act passed by the competent legislature. Further in most cases such transferees have after the transfer, which is liable to be avoided in accordance with law, enjoyed for a sufficiently long period the benefits of lands transferred to them before the lands could be recovered from them Art. 19 (1) (f), therefore, did not invalidate s. 4 of the Act.



The right or property which a transferee acquires in the granted lands, is a defeasible right and the transferee renders himself liable to lose his right or property at the instance of the grantor. This kind of defeasible right of the transferee in the granted lands cannot be considered to be property as contemplated in art. 31 and 31A. The nature of the right of the transferee in the granted lands on transfer of such lands in breach of the condition prohibition relating to such transfer, the object of such grant and the terms therefore, also the law governing such grants and the object and the scheme of the presents Act enacted for the benefit of the weaker sections of our community, clearly go to indicate that there is in this case no deprivation of such right or property as may attract the provisions of Art. 31 and 31A of the Constitution. With the enactment of the Act, the, voidable right or title of the transferee in the grant lands becomes void and the transferee is left with no right or property in the granted lands. The lands which are sought to be recovered from the transferees of the granted lands are lands in which the transferees cease to have any interest or property. The effect of the provisions contained in ss. 4 & 5 of the Act is that the defeasible right or interest of the transferees in the granted lands is defeated and the voidable transaction is rendered void. As soon as such transferees are rendered void by virtue of the provisions of the Act transferee does not have any right in the granted lands so transferred, and possession is sought to be recovered of such lands in which the transferees have lost their right and interest. Therefore, the question of acquisition of any property by the State or any modification or extinguishment of right of property does not really arise and Art. 31A cannot be applied. Therefore, there is no infringement of Arts. 31 & 31A of the Constitution.



The special provisions made for the resumption of granted lands originally granted to the members of Scheduled Castes and Scheduled Tribes and resoration of the same to the original grantees or their heirs and legal representatives and falling them to other members of these communities do not infringe Art. 14 of the Constitution. This Act has undoubtedly been passed for the benefit of members of the Scheduled Castes and Scheduled Tribes who are recognised as backward citizens and weaker sections in the country. There cannot be any manner of doubt that persons belonging to Scheduled Castes and Scheduled Tribes can be considered to be separate and distinct classes particularly in the matter of preservation and protection of their economic and educational interests. In view of the peculiar plight of these two classes, the Constitution in Art. 15 (4) makes specific mention of these two classes and in Art.16 (4) speaks of backward class of citizens. One of the directive principles as contained in Art. 46 of the Constitution enjoins that "the State shall promote with special care and educational and economic interests of the weaker sections of the people and in particular of the Scheduled Castes and Scheduled Tribes and shall protect them from social injustice and all forms of exploitation." The object of this Act is to protect and preserve the economic interests of persons belonging to Schedule Castes and Scheduled Tribes and to prevent their exploitation. For the purpose of the present Act, the classification has a clear nexus to the object sought to be achieved.


SC BY UPHOLDING AND QUOTING ABOVE OBSERVATIONS STATED FURTHER THAT :-

Any person who acquires such granted land by transfer from the original grantee in breach of the condition relating to prohibition on such transfer must necessarily be presumed to be aware of the prohibition imposed on the transfer of such granted land. Anybody who acquires such granted land in contravention of the prohibition relating to transfer of such granted land cannot be considered to be a bona fide purchaser for value and every such transferee acquires to his knowledge only a voidable title to the granted land. The title acquired by such transfer is defeasible and is liable to be defeated by an appropriate action taken in this regard. If the Legislature under such circumstances seek to intervene in the interests of these weaker sections of the community and choose to substitute a speedier and cheaper method of recovery of these granted lands which were otherwise liable to be resumed through legal process, it cannot, in our opinion, be said that any vested rights of the transferees are affected. Transferees of granted lands with full knowledge of the legal position that the transfers made in their favour in contravention of the terms of grant or any law, rule or regulation governing such grant are liable to be defeated in law, cannot and do not have in law or equity, a genuine or real grievance that their defeasible title in such granted lands so transferred is, in fact, being defeated and they are being dispossessed of such lands from which they were in law liable to be dispossessed by process of law. The position will however, be somewhat different where the transferees have acquired such granted lands not in violation of any term of the grant or any law regulating such grant as also where any transferee who may have acquired a defeasible title in such granted lands by the transfer thereof in contravention of the terms of the grant or any law regulating such grant has perfected his title by prescription of time or otherwise. We shall consider such cases later on. But where the transferee acquires only a defeasible title liable to be defeated in accordance with law, avoidance of such defeasible title which still remains liable to be defeated in accordance with law at the date of commencement of the Act and recovery of possession of such granted land, on the basis of the provisions contained in s. 4 and s. 5 of the Act cannot be said to be constitutionally invalid and such a provision cannot be termed as unconscionable, unjust and arbitrary.


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 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 Art. 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.


Though we have come to the conclusion that the Act is valid, yet, in our opinion, we have to make certain aspects clear. Granted lands which had been transferred after the expiry of the period of prohibition do not come within the purview of the Act, and cannot be proceeded against under the provisions of this Act. The provisions of the Act make this position clear, as ss. 4 and 5 become applicable only when granted lands are transferred in breach of the condition relating to prohibition on transfer of such granted lands. Granted lands transferred before the commencement of the Act and not in contravention of prohibition on transfer are clearly beyond the scope and purview of the present Act. Also in case where granted lands had been transferred before the commencement of the Act in violation of the condition regarding prohibition on such transfer and the transferee who had initially acquired only a voidable title in such granted lands had perfected his title in the granted lands by proscription by long and continuous enjoyment thereof in accordance with law before the commencement of the Act, such granted lands would also not come within the purview of the present Act, as the title of such transferees to the granted loads 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. S. 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.







K.T. HUCHEGOWDA v. DEPUTY COMMISSIONERPETITIONER: K.T. HUCHEGOWDA
DATE OF JUDGMENT18/03/1994
BENCH: SINGH N.P. (J), AHMADI, A.M. (J), YOGESHWAR DAYAL (J)
1994 SCC (3) 536

On a plain reading, granted land will mean, any land granted by the Government to a person, who is a member of the Scheduled Castes or Scheduled Tribes which includes land allotted to such persons. Grant may be of different types; it may be by absolute transfer of the interest of the State Government to the person concerned; it may be only by transfer of the possession of the land, by way of allotment, without conveying the title over such land of the State Government. If by grant, the transferee has acquired absolute title to the land in question from the State Government, then subject to protection provided by the different provisions of the Act, he will be subject to the same period of limitation as is prescribed for other citizens by the provisions of the Limitation Act, in respect of extinguishment of title over land by adverse possession. On the other hand, if the land has been allotted by way of grant and the title remains with the State Government, then to extinguish the title that has remained of the State Government by adverse possession, by a transferee on the basis of an alienation made in his favour by an allottee, the period of limitation shall be 30 years. Incidentally, it may be mentioned that some of the States in order to protect the members of the Scheduled Tribes from being dispossessed from the lands which belong to them and of which they are absolute owners, for purpose of extinguishment of their title by adverse possession, have prescribed special period of limitation, saying that it shall be 30 years. In Bihar, vide Regulation No. 1 of 1969, in Article 65 of the Limitation Act, it has been prescribed that it would be 30 years in respect of immovable property belonging to a member of the Scheduled Tribes as specified in Part III to the Schedule to the Constitution (Scheduled Tribes) Order, 1950.


There is no dispute that so far as the Act with which we are concerned, no special period of limitation has been prescribed, in respect of lands which have been granted to the members of the Scheduled Castes and Scheduled Tribes with absolute ownership by the State Government. In this background, when this Court in the case of Sunkara Rajayalakshmi v. State of Karnataka' said that the period of limitation, which has to be taken into account for the purpose of determining, whether the title has been perfected by prescription, shall be that which runs against the State Government and therefore it would be 30 years and not 12 years, has to be read in context with the lands, the ownership whereof, has not been transferred absolutely, to the members of the Scheduled Castes and Scheduled Tribes; the lands having been only allotted to them, the title remaining with the State Government. The cases where the transfer by the State Government by way of grant has been absolute, then unless there is an amendment so far the period of limitation is concerned, it is not possible to apply the special limitation of 30 years, so far such grantees are concerned, when the question to be determined, is as to whether a transferee in contravention of the terms of the grant, has perfected his title by remaining in continuous and adverse possession. The transferee, who has acquired the land from the grantee, in contravention of the terms of the grant shall perfect his title by adverse possession by completing the period of 12 years.


When this Court said in its main judgment, in the case of Manchegowda v. State of Karnataka2 that in cases where granted lands had been transferred before the commencement of the Act in violation of the condition, regarding prohibition on such transfer and the transferee who had initially acquired only a voidable title, in such granted lands had perfected his title in the granted lands by prescription by long and continuous enjoyment thereof in accordance with law before the commencement of the Act, has to be read, for purpose, of determining the period of limitation in respect of lands granted with absolute ownership, to mean 12 years and grant by way of allotment without transfer of the ownership in favour of the grantee, to mean 30 years.



Court has to examine the claim made by the appellant on the materials produced in support of the said claim, especially the deed of grant in favour of the original grantee, for the purpose of recording a finding as to whether the grant was in the nature of absolute transfer of the title of the State Government in favour of the grantee or it was a mere allotment for enjoyment of the lands in question, the title having remained with the State Government.


It need not be pointed out that any claim made on behalf of the appellant, that the grant by the State Government in favour of the original grantee was in the nature of absolute grant, reserving no right, title and interest and that transferee has perfected his title by continuous and adverse possession over such transferred land, shall be examined taking into consideration, as to whether the appellant had raised this question at the earliest opportunity i.e. before the Assistant Commissioner and what material had been produced by the appellant before the Assistant Commissioner in support of such claim. It need not be impressed that the object and the scheme of the Act is to protect the interest of the members of the Scheduled Castes and Scheduled Tribes, who shall be deemed to be a weaker section of our community and the transfer in favour of the appellant admittedly being in contravention of the terms of the grant in favour of the original grantee, heavy onus rests on the appellant, to show to the court that by his continuous and adverse possession, the right, title and interest of the grantee has been extinguished before the commencement of the Act.


PLANNED DEVELOPMENT OF ALL CITIES STRESSED BY SUPREME COURT

In Friends Colony Development Committee v. State of Orissa and Others [(2004) 8 SCC 733], the SUPREME Court observed: "In all developed and developing countries there is emphasis on planned development of cities which is sought to be achieved by zoning, planning and regulating building construction activity. Such planning, though highly complex, is a matter based on scientific research, study and experience leading to rationalisation of laws by way of legislative enactments and rules and regulations framed thereunder. Zoning and planning do result
in hardship to individual property owners as their freedom to use their property in the way they like, is subjected to regulation and control. The private owners are to some extent prevented from making the most profitable use of their property. But for this reason alone the controlling regulations cannot be termed as arbitrary or unreasonable. The private interest stands subordinated to the public good. It
can be stated in a way that power to plan development of city and to regulate the building activity therein flows from the police power of the State. The exercise of such governmental power is justified on account of it being reasonably necessary for the public health, safety, morals or general welfare and ecological considerations; though an unnecessary or unreasonable intermeddling with the private ownership of the property may not be justified."

Amendment of plaint and written statement - Observations of supreme Court in Various cases


1. The Hon’ble Supreme court of India in Salem Advocate Bar Assn. v. Union of India [(2005) 6 SCC 344] has held that “It is to be noted that the provisions of Order 6 Rule 17 CPC have been substantially amended by the CPC (Amendment) Act, 2002. Under the proviso no application for amendment shall be allowed after the trial has commenced, unless in spite of due diligence, the matter could not be raised before the commencement of trial.

2. The Hon’ble Supreme court of India in Rajkumar Gurawara (Dead) Thr. L.Rs. vs S.K. Sarwagi And Co. Pvt. Ltd. And Anr. Decided on 14/5/2008 and Judgement can be seen in http://judis.nic.in/supremecourt/chejudis.asp “ It is settled law that the grant of application for amendment be subject to certain conditions, namely, (i) when the nature of it is changed by permitting amendment; (ii) when the amendment would result introducing new cause of action and intends to prejudice the other party; (iii) when allowing amendment application defeats the law of limitation. The plaintiff not only failed to satisfy the conditions prescribed in proviso to Order VI Rule 17 but even on merits his claim is liable to be rejected.”

3. The Hon’ble Supreme court of India in Chander Kanta Bansal vs Rajinder Singh Anand Decided on: 11/03/2008 and Judgement can be seen in http://judis.nic.in/supremecourt/chejudis.asp It is observed by court as follows “ It makes it clear that after the commencement of trial, no application for amendment shall be allowed. However, if it is established that in spite of "due diligence" the party could not have raised the matter before the commencement of trial depending on the circumstances, the court is free to order such application. The words "due diligence" has not been defined in the Code. According to Oxford Dictionary (Edition 2006), the word "diligence" means careful and persistent application or effort. "Diligent" means careful and steady in application to one's work and duties, showing care and effort. As per Black's Law Dictionary (Eighth Edition), "diligence" means a continual effort to accomplish something, care; caution; the attention and care required from a person in a given situation. "Due diligence" means the diligence reasonably expected from, and ordinarily exercised by, a person who seeks to satisfy a legal requirement or to discharge an obligation. According to Words and Phrases by Drain-Dyspnea (Permanent Edition 13A) "due diligence", in law, means doing everything reasonable, not everything possible. "Due diligence" means reasonable diligence; it means such diligence as a prudent man would exercise in the conduct of his own affairs. It is clear that unless the party takes prompt steps, mere action cannot be accepted and file a petition after the commencement of trial.”

4. The Hon’ble Supreme court of India in N.Pandey & Anr. Vs. Swami Keshavprakeshdasji N. & Ors. [2006 (12) SCC 1]. and Judgement can be seen in http://judis.nic.in/supremecourt/chejudis.asp In paragraph 57 of the decision, it was observed as follows :”It is submitted that the date of settlement of issues is the date of commencement of trial.”

5. The Hon’ble Supreme court of India in Baldev Singh & Ors. Vs. Manohar Singh & Anr. [2006 (6) SCC 498]. and Judgement can be seen in http://judis.nic.in/supremecourt/chejudis.asp In paragraph 17 of the decision, it was held and observed as follows : “Before we part with this order, we may also notice that proviso to Order 6 Rule 17 CPC provides that amendment of pleadings shall not be allowed when the trial of the suit has already commenced.

6. The Hon’ble Supreme court of India in South Konkan Distilleries & Anr. Vs Prabhakar Gajanan Naik & Ors.[Decided on 09-09-2008]. and Judgement can be seen in http://judis.nic.in/supremecourt/chejudis.asp it was held and observed as follows : “we are of the view that if a suit was filed on the amended claim, it was an admitted position that the said claim was barred by limitation, the question of allowing the amendment of the written statement and the counter claim, in the facts and circumstances of the case, could not arise at all. Accordingly, the courts below were fully justified in rejecting the application for amendment of the written statement and the counter claim.”

WHEN ASSISTANT COMMISSIONER COMES ACROSS ILLEGAL TRANSACTIONS THROUGH ANY NEWS PAPER REPORTS OPTIONS LEFT




1. The Assistant Commissioner exercises his powers under the chapter III of The Karnataka Land Revenue Act 1964 regarding any appeals, revision and review. As per Hon’ble High Court of Karnataka’s Decision in R.C.Puttaiah v/s The Deputy Commissioner & others Reported in 1989(2) Kar LJ page 9 “ Assistant Commissioner has no power to review his own order” The same view was expressed by Hon’ble High Court of Karnataka’s Decision in the case of M.Narayanappa v/s Hemavathi reported in ILR 1987 KAR page 715.

2. The powers under Section 83 of The Karnataka Land Reforms Act 1961 does not confer powers on Assistant Commissioner to withdraw his earlier order.

3. Under Section 83 of The Karnataka Land Reforms Act 1961 if any illegal transaction comes to the notice of Assistant Commissioner following procedure has to be adopted.
• He has to make summary enquiry
• He has to insist upon land owner to file Form 12 and cross verify the declaration made through concerned Tahsildar.
• Assistant Commissioner has to seek preliminary report from Tahsildar, copy of such report has to be served to land owner to file his objections over the report and then only decision of action under section 83 can be made.
• Under Section 66(2) of The Karnataka Land Reforms Act 1961 Tahsildar is only having powers to issue notice to furnish declaration to any person having excess land beyond ceiling limit.
• Assistant Commissioner can direct concerned Tahsildar to issue notice to concerned person and seek declaration from the person about his land holdings if he becomes aware of illegal transaction.

4. As decided by Karnataka High Court in the case of D.S.Shamala v/s Assistant Commissioner Karnataka reported in 1978(1) Kar.LJ page 472 “The Assistant Commissioner has no jurisdiction to invalidate sale transactions under section 83 before any action is taken by the Tahsildar under section 66-A of the The Karnataka Land Reforms Act 1961”

5. The only legal options left out for an Assistant Commissioner who comes to know about his illegality in orders previously made are:
• He has to file criminal case against persons who filed false affidavits before his court.
• He has to report matter to the Deputy Commissioner, if he has any legally valid defense about his conduct in such proceedings as alleged in news papers reports.
• He should have records before him to send any report or to take any action on the false declarations.
• If the records were seized by the Deputy Commissioner, AC cannot proceed further to pass any orders without perusing records.
• At most he has to summon all records related to concerned cases from lower authorities who changed khatha based on his orders and collect fresh evidence if any to make report to the immediate superior. To do so he has to follow procedure asking Tahsildar to submit his report after issuing notice Under Section 66(2) of The Karnataka Land Reforms Act 1961


6. Under Section 83 of The Karnataka Land Reforms Act 1961 AC can only initiate inquiry regarding illegal transaction. To conclude a transaction to be illegal following records need to be summoned:
• J slip of illegal transactions.
• List of illegal land extent and along with RTC and Mutations.
• Report of Tahsildar
• Declaration of Land Holder under Form-12

7. News paper Report is not having any evidenciary value to take any final action based on it, only thing is to initiate action under Section 66(2) of The Karnataka Land Reforms Act 1961, based on such reports and summoned documents notice has to be given to land holder and furnish report copy and seek his explanation to make decision under Section 83 of The Karnataka Land Reforms Act 1961

KARNATAKA LAND LAWS