Pendse, C.J.
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 Number 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. Inspite of the prohibition the grantee sold the land to Harichandra 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 moto, 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.
4. Harichandra during the pendency of the Petition challenging the order of Deputy Commissioner instituted another Petition being Writ Petition No. 23217 of 1990 before the learned Single Judge for a declaration that any order passed by the Assistant Commissioner under Section 5 of the Act for restoration of the land shall be only subject to the right of the transferee to claim the value of the improvements as prescribed under Section 51 of the Transfer of Property Act. To this Petition, only the State of Karnataka, the Deputy Commissioner and Assistant Commissioner were made party-respondents and the grantee was not joined. The Writ Petition filed by Harischandra along with batch of other Petitions claiming identical relief were dismissed by the learned Single Judge by Judgment dated April 8, 1992 and reported in : AIR1993Kant188 Channappa vs. State of Karnataka. Harischandra feeling aggrieved by the Decision ot the learned Single Judge has preferred Appeal No. 1045 of 1992.
The other-Appeals in this batch also involves the identical issue. Writ Petition No. 2259 of 1992 was filed by one T.S. Allappa before the learned Single Judge seeking the identical reliefs and the learned Single Judge by order dated July 8, 1994 directed that the Petition should be placed before the learned Chief Justice for constituting the Bench to determine the following two issues:-
'(a) Whether the provisions of Section 51 of the Transfer of Property Act is applicable in the matters of cases covered by Sections 4 and 5 of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978?
(b) Whether the alienee or transferee in such cases as are covered by Sections 4 and 5 of Act No. 2 of 1979 is entitled to get improvements made by him in the land removed and take out the material used by him in making improvements or is he entitled to claim compensation for those constructions and improvements?'
The learned Single Judge felt that the Decision reported in : AIR1993Kant188 requires reconsideration with the following observations :-
'When this Act is silent and does not speak anything to the effect that improvements made by alienee on the land of the grantee, the alienation of which land has been declared to be null and void, shall not be taken notice nor does it provide that transferee will be deprived of that improvement without paying compensation.'
The Petition, along with other Petitions where similar relief is claimed, are now placed before the Bench for disposal.
5. The provisions of Section 4 of the Act are attracted where the transfer is effected of granted land. The expression 'granted land' as defined under Section 3(b) of the Act means any land granted by the Government to a person belonging to Scheduled Caste or Scheduled Tribe and includes land granted under the relevant taw for the time being in force. The grants are issued under the Rules known as Mysore Land Revenue Rules framed under Section 233 of Mysore Land Revenue Code. It is not in dispute that the lands are granted by the Government and the grants are made on terms and conditions set-out in the grant. The transfers which can be declared as null and void by the Assistant Commissioner are those which are made in contravention of the terms of the grant. The transferee whose transfers are declared null and void by the Assistant Commissioner and where the order is passed for resumption of the land and restoration to the original grantee or his legal heir, has raised the contention that the transferee made improvements after purchase of the property and js entitled to the value of the improvements and the same must be paid or secured to the transferee. The claim is made with reference to provisions of Section 51 of the Transfer of Property Act. The question which requires determination is, whether the transferee can claim benefit of provisions of Section 51 of the Transfer of Property Act. Section 51 of Transfer of Property Act reads as follows:-
'When the transferee of immovable property makes any improvement on the property, believing in good faith that he is absolutely entitled thereto, and he is subsequently evicted therefrom by any person having a better title, the transferee has a right to require the person causing the eviction either to have the value of the improvement estimated and paid or secured to the transferee, or to sell his interest in the property to the transferee at the then market-value thereof, irrespective of the value of such improvement.
The amount to be paid or secured in respect of such improvement shall be the estimated value thereof at the time of the eviction.
When, under the circumstances aforesaid, the transferee has planted or sown on the property crops which are growing when he is evicted therefrom, he is entitled to such crops and to free ingress and egress to gather and carry them.'
The Constitutional validity of the Act was upheld by this Court in Judgment reported in I.L.R. 1982 KARNATAKA 1310, Krishnappa S.V. vs . State of Karnataka and later by the Supreme Court in the Decision reported in : [1984]3SCR502 . , Manche Gowda vs. State of Kamataka.
6. The Transfer of Property Act, 1982 was enacted by the Parliament to define and meet certain parts of the law relating to the transfer of property by act of parties. Section 5 of Transfer of Property Act provides that the expression 'transfer of property' means an act by which the living person conveys property, in present or future, to one or more other living person. The transfers covered by Transfer of Property Act are transfers inter-vivos, between the living persons and transfers by operation of law are not covered. The transfer which attracts provisions of Section 4 of the Act are made by the grantee in favour of the transferee and in contravention of the terms of grant. The land is granted by the Government and the conditions of grant confers right on the Government to resume the land in case any of the terms of the grant is contravened. The Government Grants Act, 1895 was enacted to explain the Transfer of Property Act, 1882, so far as it relates to grants from the Government and to remove certain doubts as to the powers of the Government in relation to such grants. Section 2 of this Act interalia provides that nothing in the Transfer of Property Act, 1882 shall apply or shall be deemed ever to have applied to any grant made by or on behalf of Government and every such grant shall be construed and take effect as if the Transfer of Property Act had not been passed. Section 3 of this Act then prescribed that all prohibitions, restrictions, conditions and limitations contained in any grant shall be valid and shall take effect according to tenor, and not Rule of Law, statutory enactment of Legislature to the contrary notwithstanding. The plain reading of Sections 2 and 3 of this Act makes it clear that the provisions of Transfer of Property Act have no application in respect of transfers effected by the Government by nature of grant. The Supreme Court in the Decision reported in : [1974]1SCR344a , State of UP. of Zahoor Ahmad & Anr. observed that the effect of Section 2 of Government Grants Act is that in the construction of an instrument governed by the Government Grants Act the Court shall construe such grant irrespective of the provisions of the Transfer of Property Act. The grant shall be construed to take effect as if the Transfer of Property Act does not apply. The lands in respect of which the Assistant Commissioner holds that the transfer is null and void under Section 4 of the Act are the lands granted by the Government and consequently the provisions of the Transfer of Property Act will have no application while resuming the lands under Section 5 of the Act.
7. Even assuming that the provisions of Transfer of Property Act, especially Section 51 of the said Act, is applicable, still the contention that the transferee is entitled to the benefit of the improvements made cannot be accepted. In the first instance, the transfers are declared null and void and the said transfer is deemed not to have conveyed any right, title or interest in favour of the transferee under Section 4 of the Act. Once the transaction is declared null and void, then in the eyes of law the transaction had never taken place and consequently the transferee cannot claim any benefit flowing from such transaction and claim cannot be made in respect of improvements made in pursuance of the transaction. Secondly, Section 51 of the Transfer of Property Act is attracted where the immovable property is transferred and improvements are made by the transferee in good faith that the transferee is absolutely entitled to the property.
It is a far cry to suggest that the transferee has made the improvements in good faith or the transfer war secured bona fide. The transferee was fully conscious that the transferee is in possession of the land under a grant issued by the Government and the terms and conditions of the grant specifically prohibits the transferor from alienating the land for a duration of 15 years from the date of grant It is impossible even to suggest that the transferee, who secured the transfer within the period of prohibition, can claim that the transferee acted bona fide and in good faith made improvements on the land. Thirdly, the benefit of Section 51 is available only to a certain category of transferees. The Section prescribes that when the transfree who made improvements in good faith is subsequently evicted by any person having a better title, then only the transferee has a right to require the person causing the eviction to value the improvements and pay the same. The crucial words are transferee is subsequently evicted by any person having a better title. The transferee is evicted by the Assistant Commissioner in exercise of statutory power under Section 5 of the Act and not because the Assistant Commissioner has a better title than that of the transferee. The eviction takes place because the transfer is null and void being in contravention of the terms of the grant made in favour of a member of Scheduled Caste or Scheduled Tribe, The granted land always belong to the Government and the grantee was not entitled to alienate the land during the prohibited period and the Government had a right to resume the same. The right which flows to the transferee under Section 51 of the Transfer of Property Act is available only when the transferee is evicted by a person having better title and in our judgment, such a contingency does not arise when the transferee is evicted under Section 5 of the Act because the transfer is declared as null and void under Section 4 of the Act.
8. Reliance was placed on the observation made by the Division Bench of this Court while upholding the validity of the Act. In paragraph 59 of this Judgment it was observed that 'Nothing in the Act makes the provisions of the Transfer of Property Act, 1882 inapplicable to alienation of granted lands'. Attention of the Division Bench was not invited to the provisions of Government Grants Act 1895.
The Division Bench further observed that if alienee of a granted land is evicted by the Assistant Commissioner under Section 5 of the Act, then the alienee may remove the standing crops and fixtures put by him in such land. The alienee may sue his alienor for the return of the purchase money and can also claim from the original grantee or his heirs to whom such land is resumed the value of the improvements made in the land. The Division Bench felt that the right to get such return of the purchase money and the right to claim the value of improvements will mitigate to some extent the hardship caused to the alienee of a granted land when he is evicted there from under Section 5 of the Act. The observations of the Division Bench proceed on the assumption that the provisions of Section 51 of the Transfer of Property Act are applicable in respect of alienation of granted lands. With respect, the assumption was not correct. Even otherwise, the alienee is not entitled to the benefit of provisions of Section 51 of the Transfer of Property Act as the alienation was not bona fide and the improvement of land was not made in good faith. The alienee is not entitled to claim the benefit because the alienee is not evicted und.er Section 5 of the Act because the Government has a better title compared to the alienee. The alienee is evicted because the alienation was in breach of the terms of conditions of grant as prescribed under Section 4 of the Act. It is not permissible to confer rights which are not available to the alienee under Section 51 of the Transfer of Property Act merely to mitigate the hardship caused to the alienee. The transferee had secured the transfer in contravention of the terms of the grant and with open eyes and had enjoyed fruits of such transfer till the Act came into force. The Legislature had enacted the provisions of the Act to protect the interest of the grantees who belong to depressed section of the society, being members of the Scheduled Caste and Scheduled Tribe. The Legislature must have realised that the transfers of granted land was secured from grantees who were educationally and economically backward and could not protect their interest. The Supreme Court in Manche Gowda's case, observed that the transferees of granted lands with full knowledge of legal position that the transfers were in contravention of terms of the grant cannot make any grievance either in law or in equity. It is therefore not permissible to suggest that even if the transfers are null and void from its inception, the transferees can claim value of the improvements or to the crops planted or sown on the property. The Referring Judgment suggests that the transferees cannot be deprived of the improvements without payment of compensation because the Act is silent and does not prohibit payment of such compensation. The approach is not accurate because the benefit of claiming value of the compensation is not available unless there is a specific provision for the same. Such a provision was made by Sub-sections (2) to (4) of Section 3 of Maharashtra Restoration of Lands to Scheduled Tribes Act and the validity of which was upheld by the Supreme Court in the Decision reported in : [1985]2SCR224 , Lingappa Pochanna Applewar v. State of Maharashtra. In the absence of any parallel provision in the Act, it is not permissible to claim the benefit by reference to Section 51 of the Transfer of Property Act. In our Judgment, the Decision reported in : AIR1993Kant188 , is correct for the reasons set-out herein-above.
The Answer to the two Questions referred by the Learned Single Judge are therefore in the negative.
9. Accordingly, all the Appeals are dismissed but without any order as to costs. The Writ Petitions referred to Division Bench fails and Rule in each of the Petitions stands discharged but without any order as to costs.