VEERAMMA Vs. DEPUTY COMMISSIONER SHIMOGA

JUDGEMENT

(1.) HEARD the petitioner's counsel. The petitioner has sought writ of certiorari for quashing the order dated 7-8-1997, passed by assistant commissioner in case No. Ptcl 30 of 1992-93 and ptcl 10 of 1996-97, as per Annexure-F. The petitioner has further sought the relief of prohibition or any other writ to prohibit respondent 1 from proceeding with appeal No. Sc/st 22 of 1997-98, whereby he has challenged the order of the assistant commissioner passed under Section 5 of act 2 of 1979.

(2.) THE order at Annexure-F is the order of resumption of the land after having declared the sale deed dated 3-12-1990 to be null and void, as being in breach of the terms of Section 4 of the act. By this sale deed the petitioner had purchased the granted land from the grantee who belongs to scheduled caste. In other word the grantee belong to scheduled caste. The land was granted in his favour some times in 1974 and as admitted by the petitioner, it was a grant for something less than the full market value to the grant or; in contravention of sub-section (2) of Section 4 of the Act, the transfer shall be null and void and shall not confer nor will be deemed to have conferred any title or interest in land or right in such land in favour of the transferee.

(3.) SUB-SECTION (1) of Section 4 of the act indicates that it applies in case of transfer irrespective of the fact that transfer has been made earlier to the coming into force of the act or subsequent to the coming into force of the Act, it applies to transfers of granted land. If a transfer has been made after the coming into force of the act and even if it is not in breach of the terms of the grant, even if it has been made after the expiry of the period of operation of non-alienation clause, provided under the grant or rules, but if the transfer is one which has been made after the coming into force of the Act, then in those cases, sub-section (2) of Section 4 of the act will apply. That if transfer has been made after the coming into force of the Act, then sub-section (2) being prospective will and being applicable to transfers made after the commencement of the Act, what is required is that the transferor or the transferee will have to seek the previous permission of the government to make the transfer. The transferee will have to seek the permission to acquire the granted land by transfer and the transferor will have to seek permission that he may be allowed to make transfer. If such a permission from the government has not been obtained made and the granted land has been transferred after coming into force of the Act, irrespective of the fact that the land was granted earlier to the commencement of the act or subsequent to the coming into force of the Act, transfer which is in breach of sub-section (2) will be null and void. What is material to be seen for application of sub-section (2) is that whether the transfer in question has been made of the granted land by the grantee, before the coming into force of the act or after the coming into force of the act. In cases where transfer has been made or is shown to be made before coming into force of the Act, of the granted land and transfer has been made after the expiry of the period of non-alienation clause, no doubt as contended by learned counsel for the petitioner as well, the Provisions of the act 2 of 1979 will not apply and will not affect its legality or validity. But if the transfer of the granted land irrespective of the period of the grant i. e. , whether it has been granted earlier to the passing of the act or subsequent to the passing of the Act, but if transfer has been made on any date after the enforcement of the Act, irrespective of the fact that prohibitory clause under the grant rules or under the grant certificate has expired, even then bar under sub-section (2) will be operative. Section 4 (2) of the act provides, that no person shall transfer after the commencement of this Act, nor acquire by transfer any granted land without previous permission of the government. This mandates that neither granted land shall be transferred nor shall be acquired by any person by transfer from the grantee, until and unless the necessary permission has been previously obtained from the government. It means there is a complete bar and the bar created under sub-section (2) of Section 4 will stand removed only on the grant of permission by the state government, otherwise, grantee cannot make transfer of the granted land, nor can any person acquire granted land by way of transfer from the grantee. This view of mine find support from an earlier decision of this court in the case of Thippaiah v Deputy Commissioner and others.