HARISCHANDRA HEGDE Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) IN this batch of writ petitions and writ appeals the question which falls for determination is, whether the Provisions of Section 51 of Transfer Of Property Act are attracted when the transaction of alienation is found to be void in accordance with the Provisions of Section 4 of the Karnataka scheduled castes and scheduled tribes (prohibition of transfer of certain lands) Act, 1978. The facts leading to filing of appeal No. 1045 of 1992 are set-out hereinafter to appreciate the contentions urged at the bar. On may 1, 1961 an area of two acres of land out of survey No. 134/110 situated at hosudi "village in taluk and district shimoga was granted in favour of Smt. Gangamma under Mysore land revenue rules. The grant was on condition that the grantee shall not alienate the land for a duration of fifteen years from the date of grant. The grant prescribed that in case the grantee commits breach of the condition, the government will be entitled to resume the land. In spite of the prohibition the grantee sold the land to harischandra on February 15, 1965 and harischandra in turn effected alienations on subsequent date.

(2.) THE Karnataka government enacted the Karnataka scheduled castes and scheduled tribes (prohibition of transfer of certain lands) Act, 1978 (hereinafter referred to as 'the act') to provide for the prohibition of transfer of certain lands granted by government to persons belonging to scheduled castes and scheduled tribes in the state. The act came into force with effect from January 1, 1979. Section 4 (1) of the act prescribes that notwithstanding anything in law, agreement, contract or instrument, any transfer of granted land made either before or after the commencement of the act shall be null and void, if such transfer is in contravention of the terms of the grant. The sub-section further provides that it will be deemed that the transfer had not created any right, title or interest in such land. The expression "granted land" is defined under Section 3 (b) and means any land granted by the government to a person belonging to scheduled caste or scheduled tribe under the relevant law for the time being in force. The expression "transfer" has been defined under Section 3 (d) of the act and means gift, exchange, mortgage, lease or any other transaction not being a partition among members of the family or testamentary disposition and includes the creation of a charge or agreement to sell, exchange, mortgage or lease. Section 5 of the act provides that the assistant commissioner, if satisfied, that transfer of any granted land is null and void either on the application of any interested person or on an information given in writing by any person or suo motu, then the assistant commissioner may, by Order, take possession of such land after evicting all persons in possession thereof. Section 5 (1) (b) of the act provides that the assistant commissioner on resumption shall restore land to the original grantee or his legal heirs and where it is not reasonably practicable to do so, then such land shall be deemed to have been vested in the government free from all encumbrances.

(3.) ON September 11, 1986, the original grantee Smt. Gangamma filed application before the assistant commissioner under Section 5 of the act. The assistant commissioner after service of notice and giving opportunity to the transferee, by order dated may 29, 1987 held that the transfer made by the grantee in favour of harischandra was in breach of the terms of the grant and consequently null and void. The decision of the assistant commissioner was confirmed in appeal by deputy commissioner on may 25, 1989. The transferee -then filed writ petition under articles 226 and 227 of the constitution, being writ petition No. 7811 of 1990 before the learned single judge of this court. The said petition is pending disposal.