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2005 (7) TMI 680 - SUPREME COURT

2005 (7) TMI 680 - SUPREME COURT - 2005 AIR 4013, 2005 (1) Suppl. SCR 770, 2005 (6) SCC 228, 2005 (6) JT 347, 2005 (5) SCALE 580 - Appeal (civil) 4308-4310 of 1998 WITH CIVIL APPEAL NOS. 6044-6047/1998 - Dated:- 22-7-2005 - K.G. BALAKRISHNAN & P. VENKATARAMA REDDI, JJ. JUDGMENT K.G. BALAKRISHNAN, J. All these appeals have been filed against the common Judgment passed by the Full Bench of the Karnataka High Court in five Writ Appeals. Under the Mysore Land Revenue (Amendment Rules), 1960 [her .....

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cheduled Tribes (Prohibition of Transfer of Certain Lands), Act, 1978 [hereinafter being referred to as "Act 2 of 1979"] came into force on 1.1.1979. Section 4 of this Act is to the effect that 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, shall be null and void and no right, title or interest on such land shall be conveyed nor be deemed ever to have conv .....

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ides that an Assistant Commissioner, on application by any interested persons or on information given in writing by any person, or suo-motu, after such inquiry, if he is satisfied that the transfer of any granted land is null and void as provided under sub-Section (1) of Section 4, may by order, take possession of such land after giving a reasonable opportunity of being heard to the person evicted, and restore the land to the original allottee. An appeal also is provided against the order passed .....

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ansferred contrary to Section 4 of Act 2 of 1979. The Assistant Commissioner after conducting inquiry in these cases held that all the transfers were null and void and directed restoration of possession to the original grantees. The affected parties filed appeals and those appeals were dismissed by the appellate authority. Those orders were challenged before the High Court and the learned Single Judge confirmed the orders passed by the appellate authority. Aggrieved by the Judgment of the learne .....

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ng opinions were expressed by different Benches of the same High Court. The relevant portion of the reference order was to the following effect:- "One of the important questions that arises for consideration in these Writ Appeals is as to whether an Authority granting land under Rule 43-J of Mysore Land Revenue (Amendment) Rules, 1960 can impose any condition at the time of making grant that the grantee, shall not alienate the land for a period of 15 years when Rule 43-J do not provide for .....

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t the conditions stipulated in Rule 43-G were not applicable to the grants made under Rule 43-J and, therefore, the conditions imposed by the Tahsildar in the 'Saguvali chit' restricting the alienation of such lands by the grantee was not sustainable in law. Aggrieved by the said decision, the State as well as the affected parties have filed these appeals. We heard the appellant's Counsel and learned Counsel for the respondents. In order to appreciate the contentions urged before us .....

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h land including the value of the trees thereon does not exceed three hundred rupees. The Assistant Commissioner in-charge of the taluk is also given power to grant land not exceeding two acres of land fit for garden cultivation or wet land with assured irrigation facilities. Rule 43 provides the format of the application form for grant of land for cultivation. Rule 43-B states that no land with more than twenty-five reserved trees in an acre shall be disposed of for cultivation except under the .....

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nt categories of persons eligible for such grant, and where a land available for disposal in any village is less than ten acres, the entire lands available shall be reserved for grant to applicants belonging to the Scheduled Castes and Scheduled Tribes who are ordinarily resident in the village. Where the extent of land available for disposal in a village is more than ten acres, a minimum of ten acres shall be reserved for grant to applicants belonging to Scheduled Castes and Scheduled Tribes. R .....

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ccount of poverty, the occupancy price may be waived up to rupees two hundred and the balance recovered in three annual instalments. (2) In the case of grant of land to applicants who are ex- servicemen the occupancy price shall be waived up to the extent awarded by Government under the Military Concession Rules. (3) In the case of grant of land free of occupancy price, the grant shall be subject to the condition that the grantee shall pay contribution or betterment levy in respect of the land a .....

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ent is of the opinion that in the circumstances of any case, it is just and reasonable to permit such alienation either for purposes of acquiring some other land or for any other purpose: Provided further that nothing in this clause shall apply to: (a) the alienation of any land in favour of the State Government or Co-operative Society as security for loans obtained for improvement of the land or for buying cattle or agricultural implements for the cultivation of the land, or alienation of any l .....

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o be terminated [by the Divisional Commissioner or the State Government] and the land resumed if any of the aforesaid conditions is not fulfilled, and on such resumption the land shall vest in Government free from all encumbrances: Provided that no land shall be resumed under this clause except after giving an opportunity to the grantee or his successor in interest to show cause why the grant should not be terminated and the land resumed." Rule 43-J is a general clause empowering the author .....

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ns of the lease have been complied with, the land may be granted to the lessee. 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 unde .....

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uld show that the finding of the Full Bench on this issue is legally not sustainable. First of all, Rule 43-J is only a general rule which says that the lands which have been given on lease for agricultural purposes could be assigned to the lessees if they complied with the conditions of lease. The title to the land primarily vests with the Government. The Government while granting title to the lessees, can impose any conditions which are permissible under law. The land is being given to lessees .....

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ears. The history of the legislation also would show that the State of Karnataka has all along been giving lands to the landless persons belonging to Scheduled Castes and Scheduled Tribes subject to the restriction on alienation of such land. Rule 43-J is a general provision which empowers the authorities to invest the lessees with title of the land provided the lessees fulfilled the conditions of lease. The High Court assumed that conditions of alienation are not stated in Rule 43-J and therefo .....

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of the Rules of 1960 could be made applicable to such grant if the grant is made at a price lesser than the market price, or is made free of cost. In the title to Rule 43-G, it is stated that the grants of lands under the preceding rules shall be subject to the following conditions. This title to the rules as such cannot be taken as the key words to interpret Rule 43-G. They have got the effect of only marginal notes. The marginal notes are not considered as legitimate aid to construction of an .....

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ted in the same sense as the long title or any part of the body of the Act." When the rule itself says that where the grant is made free of cost or at a price which is less than the full market value, such grant shall be subject to the condition that the land shall not be alienated for a period of 15 years from the date of the grantee taking possession of the land after the grant, such conditions could be imposed on any grant made to the party. In any case, the High Court failed to take int .....

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and the transferee gets no rights by virtue of such invalid transfer. That is the sum and substance of Section 4 which has not been duly considered by the High Court. 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 im .....

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llenge that clause, more so when he purchased the land, inspite 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 the 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 .....

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nt, 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 .....

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