Judgment:
Kumar Rajarathnam, J.
1. The appellant was the petitioner in the Writ Petition. She sought for the issue of a writ of certiorari to quash the order of the 3rd respondent in case No. SC/ST 174/87-88 and also for a writ of declaration to declare that the order of the 4th respondent dated 7.11.1987 as illegal and without jurisdiction.
2. The facts very briefly are: The petitioner's mother one Smt. Arundi Thimmakka had taken certain land measuring 5 acres in S.No. 21/6 of Akkathangerakatte village in Honnali taluk, on lease in the year 1969-70 and that she was a tenant in occupation on the appointed day under the provisions of the Karnataka Land Reforms Act. She also made an application for grant of occupancy rights in her favour. The Land Tribunal passed an order in favour of the said Arundi Thimmakka by its order dated 5th May 1976.
3. This land was granted under Darkast in favour of Dasa Bhovi, father of Appanna Bhovi, the first respondent herein in proceedings No. M4.DCP. 19/47-48 dated 12.8.1948. The grant stipulated that the grantee shall not alienate the granted land for a period of 20 years. It was a free grant and the grantee was a member of Scheduled Caste. Violating the condition of grant the grantee Dasa Bhovi sold the granted land in favour of the second respondent on 19.9.1962 for a consideration of Rs. 500/-. It is relevant to point out at this stage that the grantee sold the land within the prohibited period of 20 years. The second respondent allowed Smt. Thimmakka, the mother of Dyamappa (the appellant herein) to cultivate the said land. The mother of the appellant approached the Land Tribunal seeking occupancy rights in her favour. The Land Tribunal in its proceedings dated 15.5.1976 granted occupancy rights under the Karnataka Land Reforms Act. The appellant, was in possession and enjoyment of the said land as a result of the grant of occupancy rights granted to her mother. It is stated by the appellant that since the death of the mother, the appellant has been in possession and enjoyment of the land in question. This is one side of the case.
4. The other side of the case is that on an application made by the legal heir of Dasabhovi (original grantee) the first respondent herein, action was initiated under the provisions of the Karnataka Scheduled Castes & Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 to enable the State of resume the land and hand it over to the original grantee or his legal heir's. This was resisted by the appellant.
5. After hearing of all the parties, the Assistant Commissioner, declared that the alienation within the prohibited period by the original grantee was void and directed restoration of the land in favour of the claimant. The appellant preferred an appeal unsuccessfully.
6. Aggrieved by the orders of the third and fourth respondent, the Writ Petitioner had preferred the Writ Petition.
7. The learned Single Judge, exhaustively dealt with all the contentions raised by the Learned Counsel for the petitioner and rejected the Writ Petition holding that the provisions of the Karnataka Schedule Castes & Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act over-rides any right conferred under the Karnataka Land Reforms Act in favour of the petitioner since the original grantee had alienated the land granted to him within the prohibited period.
8. Aggrieved by the order of the learned Single Judge, the petitioner has preferred this Writ Appeal.
9. Mr. Naik, Learned Counsel for the appellant submitted that the land had vested with the Government on 1.3.1974 and in accordance with the provisions of the Karnataka Land Reforms Act occupancy rights were granted to the appellant. He submitted that once the land vested with the Government under the provisions of Land Reforms Act, it would not be possible for the Government to resume the land under the provisions of the Karnataka Scheduled Castes & Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 (hereinafter referred to as the 'Act'). He elaborated his submission by stating that there cannot be two vesting in the same land and it would not be open for the authorities to go behind the vesting under the provisions of the Karnataka Land Reforms Act. The Learned Counsel also strenuously submitted that the alienation by the original grantee was not void but only voidable and therefore, the occupancy rights conferred on the legal heir of the appellant had become final and binding. It was further submitted that in these circumstance it would be contrary to law to resume the land under the provisions of the Act.
10. At first blush the submission of the Learned Counsel for the appellant appeared to be attractive. However, it is imperative that the Court considers the laudable objects of the Act and the purpose for which the Act was enacted. There cannot be any dispute that the purpose of the Act was to enable the weaker sections of the society especially those who are mainly occupied in agricultural work to enable them to be the masters of the land granted to them and make a living out of the said land.
11. In R. CHANDEVARAPPA AND ORS. v. STATE OF KARNATAKA AND ORS : (1995)6SCC309 ., the Supreme Court had given its anxious consideration to the laudable objects of the Act. The Supreme Court held at paragraph (6) thus:
'6. Having given our anxious consideration to the respective contentions, the first question that arises for determination is what would be the nature of the right given to the assignee Dasana Rangaiah Bin Dasaiah. Article 39(b) of the Constitution of India envisages that the State shall in particular direct its policy towards securing that the ownership and control of the material resources of the community are so distributed as best to subserve the common good. Admittedly, scheduled castes and scheduled tribes are the weaker sections of the society who have been deprived of their economic status by obnoxious practice of untouchability and the tribes living in the forest area far away from the civilised social life. To augment their economic status and to bring them on a par into the mainstream of the society, the State with a view to render economic justice envisaged in the preamble and Articles 38 and 46 of the Constitution distributed the material resources, namely, the land for self-cultivation. It is an economic empowerment of the poor. It is common knowledge that many a member of the deprived classes live upon the agriculture either by cultivation on leasehold basis or as agricultural labour. Under these circumstances, the State having implemented the policy of economic empowerment to do economic justice assigned lands to them to see that they remain in possession and enjoy the property from generation to generation.'
12. If we bear this in mind and the background and the philosophy of the objects of the Act this case will not present us with any difficulty.
13. Admittedly in this case the original grantee had alienated the land granted to him within the prohibited period. If that be so what was a voidable transaction would become void abinitio. If the alienation by the original grantee was voidable, the transaction itself would became void in the facts and circumstances of this case in view of the overriding effect of the Act. Section 4 of the Act stipulates that an alienation made by a member of a scheduled caste or scheduled tribe in contravention of the terms of the grant of land is null and void and that no right, title or interest passes to the alienee. Section 11 provides that the provisions of the Act shall have an overriding effect notwithstanding anything inconsistent contained in any other law or decree or order of a Court, Tribunal or other authority.
14. In a similar situation dealing with the prohibitory clause in terms of the original grant in favour of the member of scheduled castes and scheduled tribes, the Supreme Court in Chandevarappa's case held as follows:
'10. The question, therefore, is whether the alienation by the assignee in favour of the appellant is valid in law. Such alienation obviously is opposed to public policy rendering the sale void under Section 23 of the Contract Act. It is seen that Rule 43(5) of the Revenue Code clearly prohibits alienation of assigned lands. The Division Bench of the High Court in Ammanamma v. Venkataiah had considered the effect of Rule 43(5) and held that once relevant rules prohibit alienation of the property granted to depressed class for all times to come, it cannot be got over by a grant made contrary to the statutory rules. Therefore, prohibitory clause is absolute in its terms and that alone will govern the rights of the parties. We are in agreement with the view taken by the High Court.'
15. This Court in the case of SIDDOJI RAO v. STATE OF KARNATAKA AND ORS 1983(1) KLJ 478., Puttaswamy J. dealt with a similar proposition of law. In that case the respondent was a member of the scheduled castes and the land had been granted to him with a stipulation that it should not be alienated for 15 years but in violation of the stipulation and within the prohibited period, the respondent sold the land. Pursuant to the sale of the land, tenant obtained occupancy rights under the Land Reforms Act. Puttaswamy J. held that Sections 4 and 11 give overriding effect to the Act and the order of the Land Tribunal notwithstanding the authority was right in declaring the grant under the Land Reforms Act as void and restoring possession to the original grantee.
16. The statement of law expressed by the learned Judge, finds acceptance with us and we are in complete agreement with the view expressed by the learned Judge.
17. The Learned Counsel for the appellant further submitted relying on a Judgment of the Supreme Court in the case of MANCHEGOWDA v. STATE OF KARNATAKA AND ORS ILR 1984(2) KAR 1. that what was acquired by the appellant was a defeasible title and that the appellant has perfected his title by prescription of time or otherwise. The Learned Counsel submitted, the words 'otherwise' would include vesting of the land in the appellant under the Provisions of the Land Reforms Act.
The Supreme Court in Manchegowda's case has held thus:
'Any person who acquires such granted land by transfer from the original grantee in breach of the condition relating to prohibition on such transfer must necessarily be presumed to be aware of the prohibition imposed on the transfer of such granted land. Any body who acquires such granted land in contravention of the prohibition relating to transfer of such granted land cannot be considered to be a bona fide purchase for value; and every such transferee acquires to his knowledge only a voidable title to the granted land. The title acquired by such transfer is defeasible and is liable to be defeated by an appropriate action taken in this regard. If the legislature under such circumstances seek to intervene in the interests of these weaker sections of the community and choose to substitute a speedier and cheaper method of recovery of these granted lands which were otherwise liable to be resumed through legal process, it cannot, in our opinion be said that any vested rights of the transferees are affected. Transferees of granted lands with full knowledge of the legal position that the transfers made in their favour in contravention of the terms so grant or any law, rule or regulation governing such grant are liable to be defeated in law, cannot and do not have in law or equity, a genuine or real grievance that their defeasible title in such granted lands so transferred is, in fact, being defeated and they are being dispossessed of such lands from which they were in law liable to be dispossessed by process of law. The position will, however, be somewhat different where the transferees have acquired such granted lands not in violation of any term of the grant or any law regulating such grant as also where any transferee who may have acquired a defeasible title in such granted lands by the transfer thereof in contravention of the terms of the grant or any law regulating such grant has perfected his title by prescription of time or otherwise. We shall consider such cases later on. But where the transferee only a defeasible title liable to be defeated in accordance with law, avoidance of such defeasible title which till remains liable to be defeated in accordance with law at the date of commencement of the Act and recovery of possession of such granted land on the basis of the provisions contained in Section 4 and Section 5 of the Act cannot be said to be constitutionally invalid and such a provision cannot termed as unconscionable, unjust and arbitrary. The first two contentions raised on behalf of the petitioners are, therefore, overruled.'
18. In PAPAIAH v. STATE OF KARNATAKA ILR 1996 KAR 3658 the Supreme Court reiterated the law laid down in Chandevarappa's case. The Court held that Article 46 of the Constitution, enjoins upon the State to provide economic justice to the Scheduled Castes, Scheduled Tribes and other weaker sections of the society and to prevent their exploitation. Article 39(b) of the Constitution, the State is enjoined to distribute its largess, to subserve the public good. The right to economic justice to the Scheduled Castes, Scheduled Tribes and other weaker sections is a fundamental right to secure equality of status, opportunity and of status and dignity of person are teasing illusions. In rural India, land provides economic status to the owner. The State, therefore, is under constitutional obligation to ensure to them opportunity giving its largess to the poor to augment their economic position.
19. In the case before us, if the original grantee alienated the land within the prohibited period, such a transaction cannot confer any right on the claimant as held by the Supreme Court in Chandevarappa's case. If the appellant came into possession by a derivative title from the original grantee who had no right to alienate the land, then the claimant has come into possession under colour of title from the original grantee. In these circumstances, there is no substance in the submission made by the Learned Counsel and is rejected.
20. The next submission of the Learned Counsel was the Tribunal had not taken note of the fact that whether the claimant was a direct heir to succeed to the estate of the original grantee. The learned Single Judge rightly held that this contention was not raised before the Assistant Commissioner or before the Deputy Commissioner, and the learned Single Judge found from the records that the claimant Appanna Bhovi was the son of the original grantee. This submission raised before us. is also rejected.
21. In these circumstances, there is no merit in this Writ Appeal. Accordingly, the writ appeal is dismissed. There will be no order as to costs.