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2005 (7) TMI 680 - SUPREME COURT

2005 (7) TMI 680 - SUPREME COURT - TMI - 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 [hereinafter being referred to as "Rules of 1960"], certain lands were granted to me .....

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eferred 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 conveyed by such transfer. The persons who obtained grant of Government land, contrary to the .....

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ation 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 by the Assistant Commissioner. Section 11 of Act 2 of 1979 further states that Act 2 of 1 .....

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ing 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 learned Single Judge, Writ Appeals were filed which came up before the Division Bench. An argume .....

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on 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 any such condition. A further question also arisesp on the effect of a condition imposed i .....

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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 by the parties on either side, it is necessary to go into some of the relevant provisions .....

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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 special orders of Government. Rule 43-C and Rule 43-D give certain preference to individu .....

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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. Rule 43-F prescribes the order of priority and the extent of land to be granted. Marginal n .....

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nce 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 and the value of trees standing of the land. (4) Where the grant is made free of cost, or i .....

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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 land in favour of the Indian Coffee Board as security for loans advanced by the Indian Coff .....

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med 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 authorities to grant land to the lessees to whom lease had been granted previously. It reads as .....

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g 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 .....

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t 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 either free of cost or at a price which is less than the full market price. It is not an .....

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long 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 therefore, the authorities were not empowered to impose such conditions. Rule 43-J is only an ena .....

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ce 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 any section or rule. The side notes are not considered as part of the Act. Lord Macnaghten i .....

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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 into account the clear language employed in Section 4, according to which any transfer of gra .....

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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 imposed by the grantor to the grantee were void. As far as the contract of sale is concerned .....

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ition. 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 were purchased by third parties taking advantage of illiteracy and poverty of the grantees .....

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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 inter .....

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