Sadashiva, J.
1. This Appeal arises from the proceedings commenced under the provisions of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 (for short 'Act'),
2. The appellants are the purchasers of lands bearing Sy.Nos. 48 and 56 of Achanahalli Village, Sirsi Taluk, Uttar Kannada District, from the 3rd respondent. The aforesaid lands were granted in favour of the 3rd respondent by the Collector of Canara District vide his order dated 4.4.1951 on new and impartible tenure under the provisions of the Bombay Land Revenue Code. The grant was subject to the following conditions:-
1) New and impartible tenure.
2) Free of occupancy price.
3) Free of price of revenue trees.
4) Grantee should preserve all the forest trees standing in the survey numbers till they are disposed of by the Forest Department.
5) They should preserve the public rights and path if any in the said lands.
6) They should raise only food crops on the lands.
7) The entire area of the above survey numbers should be brought under cultivation within 3 years from the date of grant.
PENALTY CLAUSE:
8) For breach of any of the foregoing conditions, the grant made shall be liable for cancellation without any compensation for the improvements made or amount invested on the said lands.
9) The concession of remissions of land revenue as contemplated under G.R.R.D. No. 386/33-ll dated 21.5.1949should be extended to the above lands in case the grantee is entitled to them under the said G.R.
that, pursuant to the grant, the grantee executed a kabulayat in Form-1 as prescribed by Rule 37(4) of the Bombay Land Revenue Rules. The terms and conditions of the new and impartible tenure is that the properties shall not be partitioned nor they should be alienated in any manner except with the prior permission of the Collector. The appellants purchased Sy.No. 48 from the 3rd respondent under the registered sale deed dated 5.11.1966. By another sale deed dated 4.6.1970 they purchased Sy.No. 56 also from the 3rd respondent. It is the case of the appellants that after having purchased the lands, they brought the same under cultivation by investing huge sums of money.
3. That, in the year 1978, the State, with the object to provide for prohibition of transfer of certain lands granted by the Government to persons belonging to the Scheduled Castes and Scheduled Tribes and for restoration of such lands to such persons, brought the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 into force with effect from 1.1.1979. The 3rd respondent filed an application before the Assistant Commissioner, Sirsi Sub-Division, under Rule 3(2) of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Rules, for a declaration that the alienation of the aforesaid lands in favour of the appellants null and void and for restoration of the same in accordance with Section 5 of the Act. The Assistant Commissioner, after holding an enquiry, by his order dated 17.11.1982 dropped the proceedings on the ground that there is no violation of Karnataka Land Grant Rules as the lands in question were purchased by the appellants after the expiry of 15 years from the date of grant.
4. The 3rd respondent, being aggrieved by the order of the Assistant Commissioner, presented a Petition before this Court, in W.P.No. 2970/83. The learned single Judge by his order dated 12.10.1990 allowed the Petition and granted the application of the 3rd respondent declaring that the transfer of lands in favour of the appellants null and void as the same were made in contravention of the terms of grant and consequently, a direction was also issued to restore the lands to the 3rd respondent. Being aggrieved by the said order, the appellants have presented this Appeal.
5. During the pendency of the Appeal the 3rd respondent died and 6th respondent came on record as his legal representative. We have heard Sri T.S. Ramachandra, Sri G.E. Kotre and Sri Srinivasa Murthy, the learned Counsel for appellants, respondent-6 and respondents 1 and 2 respectively. Respondents 4 and 5 have remained absent.
6. The Assistant Commissioner, dealing with the application of the 3rd respondent, appeared to have considered the case under the provisions of the Karnataka Land Grant Rules and dismissed the application on the ground that there is no violation of Karnataka Land Grant Rules, 1969. However, the learned Single Judge has reversed the order of Assistant Commissioner and granted the application of the 3rd respondent and directed restoration of the lands to him on the ground that the lands in question were transferred in favour of the appellants in contravention of the terms of grant. The learned Judge proceeded to dispose of the Writ Petition on the premise that the lands were granted with a condition that 'the grantee should not alienate the granted land'. The learned Single Judge has also held that the Notification dated 14.4.1964 will be of no assistance to the alienees in view of Section 11 of the Act on the ground that it will have an over-riding effect over all other Acts, following the Decision of this Court in BHAGI HENGSU v. ROCKY LASRADO : ILR1991KAR2375 , wherein it was held that:-
'By a perusal of Section 11 of the Act it is undoubtedly clear that the provisions of that Section will have over-riding effect over all other enactments. Therefore, the view that Rule 29A validates the alienations made to persons other than SC/ST also is incorrect and improper. On the other hand, in view of Section 11 of the Act, which will have over-riding effect over all other enactments, Rule 29A must yield to it'.
The learned Single Judge, following the aforementioned Decision of this Court, has held that the Government order dated 14.4.1964 is ineffective and inoperative in view of Section 11 of the Act. It is true that this Court has held that the provisions of the Act will have an over-riding effect over all other Acts, customs, contracts and instruments etc.
7. Sri T.S. Ramachandra, learned Counsel for the appellants has contended that the lands in question were granted in favour of the 3rd respondent under the provisions of Bombay Land Revenue Act and the Rules framed thereunder; that the order of grant and the Kabulayat executed in pursuance thereof did not prescribe any permanent non-alienation condition; that the only restriction was that the lands shall not be partitioned and they shall not be alienated either in part or as a whole except with the prior permission of the Collector; that in the year 1960 the State Government introduced an amendment to Bombay Land Revenue Rules and according to Rule 37-1(4) of the Bombay Land Revenue (Mysore Amendment) Rules 1960 the lands granted free of cost or at a price less than the market value should not be alienated for a period of 15 years from the date of grantee taking possession of lands. It was further provided that such a land could be alienated with the previous sanction of the Government subject to such conditions as the Government may specify in special circumstances of which the Government is satisfied; that the Government by its order dated 14.4.1964 permitted the transfer of all granted lands under the provisions of the Bombay Land Revenue Code after the expiry of 15 years from the date of grant. Therefore, Sri Ramachandra contended that there was no contravention of any of the terms of the grant in the transfer of lands as the lands in question were purchased by the appellants on 5.11.1966 and 4.6.1970 after the expiry of 15 years from 15.5.1951, the date of grant. It is his further contention that the learned Single Judge was in error in applying Section 11 of the Act to hold that it will have an over-riding effect on any provisions of any law which is in force or any custom, usage or contract or any decree or order of a Court, Tribunal or other Authority. According to Sri Ramachandra, Section 11 is only a clarificatory provision which comes into operation only where such other law or any custom or any decree, order of a Court or other authority is inconsistent with the provisions of the Act, in the facts and circumstances of the case, it is his contention that there is no inconsistency between the order of grant and the Government order dated 14,4.1964 and the decision in the case of Bhagi Hengsu is therefore inapplicable. By virtue of the terms of the grant, the 3rd respondent was not allowed to transfer the lands except with the previous permission of the Deputy Commissioner. The State Government under the Bombay Land Revenue (Mysore Amendment) Rules 1960 prohibited alienation of the granted lands for a period of 15 years from the date of taking possession of the land, with a Proviso, permitting alienation with the prior sanction of the Government within the prohibited 15 years and, as there was a discrimination between the grantees under the original Bombay Land Revenue Rules and the grantees under the Mysore Amendment Rules 1960, the State Government issued a Notification 14.4.1964 prohibiting alienation within the period of 15 years from the date of grant in respect of all cases irrespective of the grant being made either before or after 1960 Rules. Sri Ramachandra, therefore, submits that there is no contravention of any of the terms of grant.
8. Sri G.E. Kotre, the learned Counsel appearing for respondent-6 has contended that the grantee was a person belonging to Scheduled Caste; that the lands in question were granted to him under the provisions of the Bombay Land Revenue Act; that he executed a kabulayat as per Rule 37(4) of the B.L.R. Rules agreeing to certain terms and one of the terms was that he shall not partition the lands and he shall not alienate the lands except with the prior permission of the Collector; Admittedly the lands in question were transferred without the permission of the Collector and therefore the transfer was in contravention of the terms of the grant. He further submitted that the Act is a beneficial statute enacted to ameliorate the living conditions of the oppressed and depressed class of the society, Taking advantage of the poverty, ignorance and living conditions of such people, they were deprived of the lands granted to them by certain influential forces by trickery and therefore the Act was brought into force to render social justice. He further contended that any provision of any other law in force, if inconsistent with the provisions of the Act, shall be regarded as ineffective in view of Section 11 of the Act and therefore the Government order dated 14.4.1964 is of no assistance to the appellants and even if it is of any significance, the grantee was still required to obtain prior permission to transfer the granted lands and in the absence of such permission, the transfer is null and void.
9. The admitted facts in this case are that the lands in question were waste lands granted by the Government by the order dated 4.4.1951 subject to the conditions referred to in paragraph 2 of this order. The grantee had executed a kabulayat as per Rule 37(4) of the B.L.R. Rules in accordance with the terms of the grant. One of the terms of the grant was new and impartible under which the grantee was prohibited from transferring the lands except with the prior permission of the Collector. No period was specified to transfer the granted lands with prior permission. It is open to the grantee either to transfer or not to transfer the lands. If he is willing to transfer, he shall secure the prior permission of the Collector at any point of time. Any transfer in the absence of such permission is void. That, in the year 1960 Rule 37-1 (4) was added by amendment, under which the lands granted free of cost or at a price less than the market value should not be alienated for a period of 15 years from the date of taking possession. However, the grantees were allowed to transfer with the prior sanction of the Government within the restrictive period. As there was a discrimination between grantees of land prior to 1960 and the grantees subsequent to 1960 Rules, the Government issued a Notification permitting alienation after the expiry of 15 years from the date of grant. The appellants purchased the lands in question after the expiry of 15 years from the date of grant.
10. Section 4 of the Act deals with the prohibition of transfer of granted lands, whereas Section 5 deals with resumption and restoration of the granted lands. Section 11 of the Act deals with its over-riding effect. Sections 4 and 11 of the Act read as under:-
'Section 4. Prohibition of Transfer of granted lands:-
1) Notwithstanding anything contained in any law, agreement, contract or instrument, any transfer of granted land made either before or after the commencement of this Act, in contravention of the terms of the grant of such land or the law providing for such grant or Sub-section (2) shall be null and void and no right, title or interest in such land shall be conveyed nor be deemed to have conveyed by such transfer.
2) No person shall, after the commencement of this Act, transfer or acquire by transfer any granted land without the previous permission of the Government.
'3) The provision of Sub-section (1) and (2) shall apply also to the sale of any land in execution of a decree or order of a Civil Court or of any award or order of any other Authority.'
'Section 11. Act to over-ride other laws:-
The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any custom, usage or contract or any decree or order of a Court, Tribunal or other Authority'.
11. From a conjoint reading of Sections 4, 5 and 11 of the Act, it is clear that transfer of any granted land in contravention of the terms of the grant of such land or in violation of the Land Grant Rules under which such land was granted, is null and void irrespective of any other law in force or custom, usage, contract or instrument and the Assistant Commissioner, either on the application by any interested person or on information being given in writing by any person or on his own, and after such enquiry if he is satisfied that the transfer of any land is null and void, he may by order, take possession of such land after evicting the persons in possession thereof and restore the same to the original grantee or his legal heirs. The provisions of the Act will have an over-riding effect over any other statutes or customs, usages or contracts or decrees or orders of any Court or any other Authority to the extent of the inconsistency of any provision or clause, as the case may be.
12. It is clear from Section 4 of the Act that transfer of a granted land would be void if the transfer is made in contravention of the terms of the grant or in violation of Land Grant Rules under which such land was granted. It is admitted in this case that originally the granted lands was not allowed to be transferred except with the previous permission of the Collector. That in the year 1960 the Government of Karnataka introduced an amendment to the Bombay Land Revenue Rules and by virtue of the said amended Rules the grantee was permitted to transfer the land after the expiry of 15 years if the land was granted either free of cost or for a price less than the market value. It was further provided that the land may be alienated within the restricted period with the prior sanction of the Government subject to such conditions as may be specified. By Government order dated 14.4.1964, in order to apply the law uniformly in respect of all the grants made either before the commencement of the Amendment Rules or after the commencement of the same, the transfer of granted land was allowed after the expiry of 15 years from the date of grant.
13. In the case on hand, the lands were granted on 4.4.1951. Sy.No. 48 was transferred on 5.11.1966 and Sy.No. 56 was transferred on 4.6.1970, obviously after the expiry of 15 years from the date of grant. Therefore, it is necessary to consider whether the aforesaid transfers have contravened any of the terms of the grant or the law relating to grant of the said lands. The grant was made under Section 62 of the Bombay Land Revenue Code and the grantee entered possession after executing a kabulayat as per Rule 37(4) of the Bombay Land Revenue Rules which contain the terms of the grant. The terms of new and impartible tenure is that it shall not be partitioned nor it shall be alienated except with the prior permission of the Collector. Therefore, there is no total prohibition of transfer of the granted lands nor there was perpetual prohibition to transfer, as observed by the learned Single Judge. On the other hand, the grantee could alienate the lands granted at any point of time but only with the leave of the Collector. If the transfer is made even within one year, it is permissible if it is made with the prior permission of the Collector. Hence, the point at issue is whether the transfer was made with the prior permission of the Collector and if not, is there any permission from any other authority competent to grant. It is admitted that there was no permission of the Collector to alienate the lands in question. However, Sri Ramachandra contends that the order dated 14.4.1964 made by the Government permitting the grantees to alienate the granted lands after 15 years from the date of grant constitutes permission. In the facts and circumstances of this case, we see considerable force in the submission of Sri T.S, Ramachandra. According to the terms of the grant, the grantee had the right to transfer the lands with the prior permission of the Collector. What was, therefore, required to transfer the lands was only the prior permission of the Collector. That, by 1960 Amended Rules, the Government was empowered to accord prior sanction to alienate the granted lands and in 1964 the Government vide its Notification dated 14.4.64 permitted the grantees to alienate the granted lands after the expiry of 15 years from the date of grant and by this order prior permission was granted to alienate the lands and thus the condition to alienate the lands was fulfilled by the grantee.
14. The learned Single Judge placing reliance on the Decision of the Division Bench of this Court in Bhagi Hengsu's case dismissed the Petition on the ground that the Notification dated 14.4.1964 is ineffective and inoperative in view of Section 11 of the Act. The Division Bench in the said case was considering the scope and application of Rule 29A of the Karnataka Land Grant Rules as amended in 1974 in the context of Section 11 of the Act. By Rule 29A, the prohibition imposed upon the grantee to transfer the lands granted to persons belonging to S.C. and S.T. in favour of any person excepting those belonging to S.C. and S.T. was removed and the transfer was allowed in favour of any person irrespective of the caste. In those circumstances, the Division Bench has held that Rule 29-A is inconsistent with the provisions of the Act as Section 4 of the Act declares that any transfer of granted land in contravention of the terms of the grant shall be null and void. There is no dispute that, if any other law which is in force for the time being or any custom, usage or any decree or order made by any Court or any other authority is inconsistent with the provisions of the Act, such law or order is inoperative and invalid to the extent of inconsistency. It is, therefore necessary to examine whether the Government Order dated 14.4.1964 is inconsistent with any of the provisions of the Act. As stated in paras 11 and 12 of this order Section 4 of the Act provides that transfer of any granted land in contravention of the terms of the grant or the law under which such grant was made, is null and void. Section 11 of the Act is only certificatory in nature inasmuch as it states that any law or custom or contract or order of any authority is ineffective if such law, custom, contract or order is inconsistent with the provisions of the Act. Such law, custom, contract or order to be ineffective must be repugnant to the provisions of the Act in general and Section 4 in particular. Section 11 will become inoperative only if the law, custom, contract or order is inconsistent with the terms of the order of grant or law under which grant was made. It is clear from the facts hereinbefore mentioned that the 3rd respondent agreed not to transfer the lands in question except with the prior permission of the Collector. There was no permanent non-alienation condition nor any period was specified to seek prior permission of the Collector to alienate the said lands. If transfer is effected with prior permission of the Collector there would be no infraction of any of the terms of the grant or any law under which grant is made and thus it would not attract Section 4 of the Act. As the Government has accorded such permission to transfer the lands in question in accordance with the terms of the grant order, we find no inconsistency in the Government Order with any provision of the Act. The Decision in Bhagi Hengsu's case is, therefore, inapplicable to this case.
15. For the reasons aforesaid, this Appeal succeeds. Accordingly, the same is allowed. The order of the learned Single Judge dated 12.10.1990 in W.P.No. 2970/82 is set aside. The Writ Petition stands dismissed and the order of the Assistant Commissioner is restored. In the circumstances of the case, there is no order as to costs.