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LAND OF SC & ST AND ITS REFORMS - COURT OBSERVATIONS AND PRECEDENTS:-

The Statement of Objects and Reasons of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 shows that the non-alienation clause contained in the existing Land Grant Rules and the provisions for cancellation of grants 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 fulfill the purposes of the grant, the land even if it has been alienated, should be restored to the original grantee or his heirs. It is clear that in order to provide for the prohibition of transfer of certain lands granted by Government to persons belonging to the Scheduled Castes and Scheduled Tribes in the State of Karnataka, the above said Act was enacted. In order to implement the provisions of the Act, the Rules were framed. Among the provisions, we are concerned with Section 4 which prohibits transfer of "granted land". It makes it clear that notwithstanding anything in any law, agreement, contract on instrument, any transfer of granted land made either before or after the commencement of the 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. Sub-section (2) makes it clear that no person shall, after the commencement of the Act, transfer or acquire by transfer any granted land without the previous permission of the Government. As per sub-section (3), the provisions of sub-sections (1) and (2) also apply 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. 10) Among the Rules, Rule 43 is relevant which speaks about the grant of occupancies. Sub-rule(1) of Rule 43 mandates that all the lands shall ordinarily be sold by public auction. Sub-rule (5) mandates Grant of occupancies to members of depressed classes. Sub-Rule (8) makes it clear that lands granted free or at upset price shall not be alienated but may be accepted as security for loans. The note appended to the above provisions makes it clear that depressed classes occurring in these rules will have to be constructed as equivalent to the words "Scheduled Caste and Scheduled Tribes" occurring in the Constitution of India. Papaiah vs. State of Karnataka & Others. The Supreme Court in Papaiah's case noticed the scope of the enactment and found that the same has been enacted in terms of the preamble of the Constitution to provide economic justice to the Scheduled Castes/Scheduled Tribes and other weaker sections of the society and to prevent their exploitation in terms of Articles 46 of the Constitution. Smt. Gowramma vs. State of Karnataka and others 1998(5) Kar.L.J. 702 :- Sub Rule (30 and (40 of Rule 3 cast a duty on authorities to initially issue a notice in Form No.2 to the person or persons in possession of the granted land calling upon him/them to file his/their objections to the Application made by a person under Section 5(1) of the Act, in the manner stipulated in sub-rule (3) and thereafter he shall also issue the notice of hearing in the enquiry proceedings to the occupant/occupants of the land informing him/them the date of hearing fixed by him. It is the decided principles of law and rules that the Authority has to look into the original grant records and any decision taken without verifying the original land grant records, it does not stand in the eye of law. In this connection it would be relevant to refer to the decisions reported in as per the decision reported in ILR 2002 KAR 2670 (Nagendrappa and another Vs. Deputy Commissioner, Davanagere and others): “Authority deciding the matter has to look into the original order of the grant of land and if the same is not available then contemporaneous granting documents like the Register maintained for this purpose what is known as Land Grant Register has to be looked into. Authorities deciding the validity of sale cannot act on presumption on mere mutation entries. Division Bench ruling in Pedda Reddy vs. State of Karnataka 1993(1) KLJ. P.328 – Assistant Commissioner cannot pass orders unless he records findings viz., (1) that the land belongs to Scheduled Caste or Scheduled Tribe; (2) that the grant was for upset price or for less than the upset price or free grant and that alienation has taken place within the period of the prohibition prescribed in the rules; According to the decision reported in ILR 1998 KAR SN.No.85: Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 – Terms of allotment including the caste of the allottee cannot be proved by vague particulars mentioned in mutation entries. Without the conclusive evidence particularly to indicate that the allottees belong to SC/ST or for that matter as to what were the exact conditions of the grant, it would not be proper to deprive the Petitioner of the land which he has been in possession for the last several years. Hon’ble Supreme Court in its decision reported in 2008(3) KCCR.1289 (B.K.Muniraju vs. State of Karnataka and others) has held that: whether a land is ‘granted land’ or land purchased for a price at a public auction’ must be ascertained by looking into the relevant records. Merely because the document was styled or titled as ‘Certificate of Grant’, it cannot be construed that the land was a ‘granted land’ attracting the provisions of the Act. LINGAPPA POCHANNA APPELWAR AND ORS. Vs. STATE OF MAHARASHTRA AND ANR. AIR 1985 SC 389. Legislation was undertaken by different States placing restrictions on transfer of lands by members of Scheduled Castes and Tribes in pursuance of the declared policy of the State of safeguarding, protecting and improving the conditions of weaker sections of the society by providing that any such transfer except in terms of the provisions of the different Acts shall be null and void. Our Constitution permits and even directs the State to administer what may be termed ’distributive justice’. The concept of distributive justice in the sphere of law−making connotes, the removal of economic inequalities and rectifying the injustice resulting from dealings or transactions between unequals in society. Law should be used as an instrument of distributive justice to achieve a fair division of wealth among the members of society based upon the principle: ’From each according to his capacity, to each according to his needs’. Distributive justice comprehends more than achieving, lessening of inequalities by differential taxation, giving debt relief or distribution of property owned by one to many who have none by imposing ceiling on holdings, both agricultural and urban, or by direct regulation of contractual transactions by forbidding certain transactions and, perhaps, by requiring others. The present legislation is a typical illustration of the concept of distributive justice. It is nothing but a remedial measure in keeping with the policy of the State for rendering social and economic justice to the weaker sections of the society. It is intended and meant as an instrument for alleviating opperession, redressing bargaining imbalance, cancelling unfair advantages, and generally overseeing and ensuring probity and fair dealings. It seeks to reopen transaction between parties having unequal bargaining power resulting in transfer of title from own to another due to force of circumstances and also seeks to restitute the parties to their original position. Nirvanappa vs The Deputy Commissioner And Ors. 2005 (1) KarLJ 234 Under the Land Grant Code and particularly in Dharkhast proceedings, it is rarely that a land is granted for full market price. The very grant by the Government is in favour of persons who are landless, who are socially backward, economically weak and to rehabilitate and provide some sustenance to them, such agricultural lands of the Government are granted in favour of such persons. Examination of the provisions of the Karnataka Land Revenue Code, 1888, indicates that any number of concessions are provided to such class of persons and conditions are imposed to ensure that the grant is sustained in favour of the grantee lest such grantees lose the land by frittering away the grant by other inducements. The conditions are imposed to dissuade and to deter other persons from eyeing such granted land by obtaining sale deeds in their favour at no cost or nominal cost and deprive the benefit to the grantees whether by purchasing the land by paying proper consideration or by inducing such persons who ultimately lose the land. In such a scenario, when the petitioner sets up a case that the land in question had been granted on receipt of full market value, the onus lies on the petitioner not only to take a specific stand through a proper plea but also to make good that plea by providing cogent material to support the plea. It should be positively proved by the persons who take up such a plea. It is the petitioner who has taken this stand and the burden is upon the petitioner to prove the same. Rule 43−G which governs such grants indicate that when such a grant is in favour of a person belonging to Scheduled caste, the first Rs. 200/− of upset price even when one is fixed is waived and in respect of the balance of the upset price such a person belonging to the Scheduled caste is allowed installment facility to pay the balance in three equal installments. If this is the legal position, it is inevitable that in respect of grants made in favour of a Scheduled caste person, whether it is a free grant or one after fixing an upset price, the amount collected from the person is never the market price of the land granted in favour of such a person. It is always at a concession of 100% of the upset price being waived if the upset price is less than or equal to Rs. 200/− and thereafter on installment facility. Therefore, the land granted in favour of the Scheduled caste person in terms of Rule 43−G(1) of the Rules under Karnataka Land Revenue Code, 1888 which reads as under: "43.G. Grant of lands under the proceeding rules shall be subject to the following conditions.−(1) In the case of grant of lands to applicants belonging to the Scheduled Castes and Scheduled Tribes, and to other applicants, who are unable to pay the occupancy price on account of poverty, the occupancy price may be waived upto rupees two hundred and the balance recovered in three annual installments". is always a concessional grant attracting 15 years non−alienation Clause under Sub−rule (4) of Rule 43−G of the Rules. In Guntaiah and Ors. v. Hambamma and Ors. [2005 (6) SCC 228]. In paragraph 8 of the judgment, it was inter alia observed as follows: "The finding of the Full Bench of the Karnataka High Court is that if the grant is made under Rule 43-J, there could not have been any condition restricting the alienation and if at all there were any such conditions they are null and void. This view has been taken for the reason that conditions restricting alienations are given under clause (4) of Rule 43-G and these provisions would apply to grant of lands made under the preceding rules and not apply to Rule 43-J which comes after Rule 43-G of the Rules of 1960. This view has been taken based on the title/marginal note of Rule 43-G. The Full Bench was also of the view that under Rule 43-J, it is not stated that there shall be any conditions prohibiting alienation. Therefore, the Court held that Authorities were not empowered to impose any such conditions." CONCLUSION From the above discussion we can see many levels of vigilance and monitoring checks at the sphere of State level, District level, Judiciary level, Sub-division level, Taluk level, Revenue office, Land records office, Sub-registrar office, Advocates level, Police level, Village panchayath level, etc., in order to check, prevent, eradicate, take action against, advice against, check gross abuse of, check mal-administration of any forms of atrocity against Scheduled Caste and Schedule Tribes. Thus we can see many levels of vigilance and monitoring committee’s that came into existence not only as a result of acts protecting Dalits but as a result of every statutory authority functioning in its sphere eminently and upto the mark of its excellence.

KARNATAKA LAND LAWS