ORDER
Rama Jois. J.
1. In this Writ Petition, in which the petitioner has questioned the legality of the order of the Assistant Commissioner, Hospet Sub-Division, Hospet, by which he declared the sale of certain agricultural lands in favour of the petitioner as invalid in view of Section 4 or the Karnataka Scheduled Castes and Scheduled Tribes. (Prohibition of Transfer of Certain Lands) Act, 1978 (The Act' for short), which order has been confirmed in appeal by the Special Deputy Commissioner (Revenue). Bellary District, the following important question of law, which also arises in large number of similar cases, arise for consideration :
'Whether under the provisions of the Act any power is conferred on the Assistant Commissioner or the Deputy Commissioner to make an assessment of the cost of improvements claimed to have been effected by the purchaser on the land, the sale of which 15 declared invalid by Section 4 of the Act, and to secure the payment of the cost of improvements effected by the purchaser concerned before taking possession or causing redelivery of the land to the original grantee ?'
2. The petition has come up for preliminary hearing. The Government Advocate is directed to take notice. The learned Counsel for the petitioner and the earned High Court Government Pleader, made their submissions in support of their respective contentions.
3. The facts of the case, in brief, are as follows : 4 acres 2 cents of land in Sy. No. 2 of Muddapura village in Hospet Taluk, Biliary District, was Granted to the 4th respondent on 19-3-1962. According to paragraph 41(4)(i) of the Madras Board Standing Orders, the land so granted to the fourth respondent, who was a member of Scheduled Caste, could not be alienated before the expiry of 10 years from the date of grant. Even as the said condition was in force, the fourth respondent mortgaged the laud granted to him in favour of the petitioner in the year 1966. Subsequently, he sold the same land to the petitioner for valuable consideration under a registered sale deed dated 18-3-1968. The Legislature of this State, having noticed large number of alienations by members belonging to Scheduled Castes and Scheduled Tribes of the lands granted to them as a matter of concession and for their upliftment,in violation of the conditions the grant, enacted the Act, which came into force from 1-1-1978. Section 4 of the Act declared that notwithstanding anything in any law or contract or agreement to the contrary, the transfer of lands granted in favour of members of Scheduled Castes and Scheduled Tribes, in contravention of the terms of grant shall be null and void. Section 5 of the Act conferred power on the Assistant Commissioner of the revenue sub-division concerned either suo moto or on the application of the person who had sold the granted land in contravention of the terms of the grant, to pass an order Declaring the sale as invalid and to secure redelivery of possession of the land to the original grantee, and in case the original grantee or his successors are not existing, to resume the land to the Government and to grant the same to any other person belonging to Scheduled Castes and Tribes. The constitutional validity of the provisions of the Act was challenged before this Court unsuccessfully. The decision of this Court upholding the constitutional validity of the provisions of the Act was confirmed by the Supreme Court in the case of Manchegowda v. State of Karnataka, ILR 1984(2) KAR 1= 1984(2) KLJ 1.
4. After the decision of the Supreme Court, steps have been taken by the authorities concerned to complete the proceedings initiated earlier and to pass appropriate orders. Accordingly in the present case, the Assistant Commissioner, Hospet Sub-Division, Hospet, after considering ail the pleas put forward by the petitioner, passed the order dated 13-5-1983 (Annexure-A). Aggrieved by the said order, the petitioner presented an appeal before the Special Deputy Commissioner (Revenue), Bellary. The learned Deputy Commissioner was also of the view that as the alienation in question has been made during toe period during which the alienation was prohibited in terms of the grant, there was no ground to interfere with the order of the Assistant Commissioner. Aggrieved by the said order, the petitioner has presented this petition.
5. As far as the declaration made by both the authorities that the sale was void in view of Section 4 of the Act is concerned, ii is unexceptionable in view of the facts which are not in dispute.
6. Learned Counsel for the petitioner, however, contended that even on the basis that the sale has to be regarded as null and void in view of Section 4 of the Act, the provisions of Section 51 of the Transfer of Property Act applied and therefore unless the cost of improvements effected by the petitioner on the land in question after taking possession of the land pursuant to the sale deed was assessed and paid to the petitioner, respondent Nas. 1 and 2 could not force the petitioner to deliver the possession of the land to the fourth respondent. The above contention raised for the petitioner gives rise to the question set out in the first paragraph of this order.
7. In support of his contention, reliance was placed by the learned Counsel for the petitioner on a Division Bench decision of this Court in S. V. Krishnappa v. Munchinnappa, WP No. 55.6 of 1979 dated 16-9-1982. The learned Counsel for the State submitted that in the decision itself it was made clear that the course open to the purchaser for recovery of cost of improvements was only to file a suit. Relevant paragraphs of the Judgment in Krishnappa's case2 are 57 to 63 and 72. They read :
'57. However, Learned Counsel for the petitioners contended that the Act should have provided for payment of compensation to alienees of granted lands, for the value of improvements made by them in the granted lends after they purchased them and the Act should have also provided for the alienees getting back from the alienors the prices paid for purchase of such lands.
58. Learned Counsel for petitioners submitted that many of the alienees of granted lands had paid substantial amounts as prices for purchasing such lands, that many such alienees had sunk large sums of money for developing and improving those lands and that it would be highly unjust and inequitable to resume such lands without paying any compensation for such improvements. It was also argued that when granted lands are restored to original grantees or their legal heirs, they should have been required to repay the monies paid to them for alienating those lands and that it would be unjust enrichment of them to give them the benefit of restoration of granted lands which they had alienated without imposing on them the obligation to refund the monies they had received as consideration for alienating those lands.
59. There is nothing in the Act which makes the provisions of the Transfer of Property Act, 1882 (hereinafter referred to as the T.P. Act) and of the Indian Contract Act, 1872 inapplicable to alienations of granted lands. Section 51 of the T.P. Act provides that where a transferee of an immovable property makes any improvement thereon believing in good faith that he is absolutely entitled thereto and he is subsequently evicted therefrom by a person having a better title, the transferee has a right to require the person causing eviction to have the value of the improvements at the time of eviction, estimated and paid or secured to the transferee or to sell his interest in such property to the transferee at the then market value thereof, irrespective of the value of such improvement. That Section further provides that when in the circumstances aforesaid the transferee has planted or sown on such property crops which are growing when he is evicted therefrom, he is entitled to such crops and free ingress and egress together and carry them.
60. The term good faith occurring in Section 51 of the T.P. Act has been interpreted as honestly believing, whether negligently or not. Good Faith may be inferred from the very fact that alienees have expended large sums of money on improvements.
61. An alienee of a granted land who is sought to be evicted therefrom, may before leaving such land take crops growing therein and remove fixtures put up by him on that land if they are capable of being removed without damaging the land. For improvement made by him in that land, he has a right to require the authority or per sun causing eviction to have the value of such improvement estimated and paid to him. The equitable doctrine of unjust enrichment also requires that the person or the authority getting the benefit of such improvement by evicting the alienee, should compensate the alienee therefor.
62. Sub-section (2) of Section 55 of the T.P. Act provides that in the absence of a contract to the contrary, the seller shall be deemed to contract with the buyer that the interest which the seller professes to transfer to the buyer, subsists and that he has power to transfer the same. As stated in Mulla's commentary on the T.P. Act, this implied covenant of title has nothing to do with the question whether the buyer has or has not notice of any defect in the title and that even if the buyer was, at the time of the contract, aware of such defect, he may, under this covenant, hold the seller responsible for the damages and may claim refund of the purchase money if he (the buyer) is dispossessed by reason of such defect in the title.
63. Thus, if an alienee of a granted land is evicted by the Assistant Commissioner under Section 5 of the Act, the alienee may remove standing crops and fixtures put by him in such land. He may sue his alienor for the return of the purchase money. He can also claim from the original grantee or his heirs to whom such land is restored, the value of the improvements made by him in that land. The right to get such return of the purchase money and the right to claim the value of such improvements, will mitigate to some extent the hardship caused to the alienee of a granted land when he is evicted therefrom under Section 5 of the Act.
X X X X
72. Before parting with these cases, we express a hope that the State Legislature will bring a suitable amendment to the Act so as to provide for an effective and cheap machinery for speedy settlement of claims for compensation for improvements nude by alienees in granted land and also claims for recovery from the alienors amounts which bad been paid to them as consideration for such alienations. Ordinarily suits in Civil Courts would be too costly and slow for settlement of such claims. We also hope that where alienees of granted lands who are evicted from those lands under Section 5 of the Act, do not possess other agricultural lands, they would be considered for grant of alternative lands treating them on par with displaced holders and displaced tenants to whom some priority is given while granting Government lands. Appropriate amendment may be made to the Karnataka Land Grant Rules, 1969.'
(Underlined by me)
In paragraph 61 it is no doubt stated that the alienee of a granted land has the right to require the authority or person causing eviction to have the value of such improvement estimated and paid to him and that the doctrine of unjust enrichment also requires that the person or the authority getting the benefit of such improvement by evicting the alienee should compensate the alienee therefor. But a reading of paragraphs 63 and 72 would make it clear that in order to get costs of improvement, the course open to the alienee is to file a civil suit unless the Legislature amends the provisions of the Act so as to provide for an effective and cheap machinery for speedy settlement of claims for compensation for improvements made by alienees in respect of granted lands and also claims for recovery from the alienors amounts which had been paid to them as consideration for such alienations. Thus, it may be seen that white the Division Bench has held that there was nothing in the Act which precluded a purchaser from claiming cost of improvement and/or purchase money from the original grantee/seller, it also held that such recovery could be only through a Civil suit, unless the Legislature amends the Act and provides for a special forum.
8. Apart from this, a reading of Section 5 of the Act would indicate that no power is conferred on the Assistant Commissioner or the Deputy Commissioner to assess the costs of improvement and to ensure its payment to the purchaser or to find out the purchase price paid by the alienee to the seller and to ensure its repayment to the alienee. In fact, if the Assistant Commissioner or the Deputy Commissioner were to proceed to find out the costs of improvement and direct the alienor to pay the said amount to the alienee, it would be plainly without jurisdiction. Farther, it may be seen that there is nothing in the provisions of the Act which makes the repayment of the purchase money or the costs of improvement as a condition for restoration of possession to the original grantee.
9. For these reasons, I answer the question as follows :
'Under the provisions of the Act, no power is conferred on the Assistant Commissioner or the Deputy Commissioner to make an assessment of the cost of improvements claimed to have been effected by the purchaser on the land, the sale of which is declared invalid by Section 4 of the Act and to secure its payment to the purchaser concerned before causing redelivery of the land to the original grantee.'
10. Before concluding, it is necessary to state that having regard to the view taken by this Court in the case of Krishnappa2 that there is nothing in the provisions of the Act which precludes the purchaser from claiming reimbursement of the costs of improvement effected on the land after purchase, by filing a civil suit or by resorting to a special remedy, if provided by an amendment of the Act, it is obligatory for the revenue authorities concerned, if requested by the petitioner, to make a detailed mahazar or inventory regarding the nature and extent of improvement claimed to have been effected by him, for, unless such a mahazar or inventory is made and a copy is given to the purchaser/petitioner, it would be difficult for him to prove the improvements effected by him and claim compensation or reimbursement, though this constitutes no ground to delay the restoration of possession to the original grantee or bis successor in interest or resumption of the land by the Government.
11. For the aforesaid reasons, I make the following order:
i) The Writ Petition is allowed in part.
ii) A direction shall issue to respondents 2 and 3 to cause a mahazar or inventory of the improvements effected on the land as claimed by the petitioner, if requested by the petitioner, and to furnish a copy of the same to the petitioner.
iii) The Writ Petition is dismissed in all other respects.