K. Manikyaraja Ballal Vs. State of Karnataka - Court Judgment

Excerpt:
karnataka scheduled castes and scheduled tribes (prohibition of transfer of certain lands) act, 1978 (karnataka act no. 2 of 1979) - sections 4 and 5 -- whether the provisions of the act apply to the lands granted to the persons, who were then not described or classified as persons belonging to scheduled caste? or whether the provisions of the act apply only with respect to the 'granted land' as defined in the act, namely, the land granted by the government in favour of persons belonging to the castes or classes which are described a 'scheduled castes or scheduled tribes'? held -- provisions of the act apply if the grantee belonged to a caste which has been specified as 'scheduled caste.' or 'scheduled tribe'.;b. karnataka scheduled castes and tribes (prohibition of transfer of certain.....orderharinath tilhari, j.1. the writ petition no. 18666 of 93, involves same question of law which is in relation to the writ petition no. 34762 of 95 and other connected writ petitions listed for hearing, as such, this writ petition has also been heard along with those writ petitions and all these writ petitions are being disposed of by one common order.2. the facts of the cases in the nutshell are that in all these cases, in proceeding under section 5 of act no. 2 of 79, the assistant commissioners have ordered resumption of the granted land as mentioned and described in the petitions and the orders and the appeals filed by the transferees - petitioners have been dismissed and disposed of by the deputy commissioners concerned affirming the orders of resumption and restoration of the.....

Judgment:
ORDER

Harinath Tilhari, J.

1. The Writ Petition No. 18666 of 93, involves same question of law which is in relation to the Writ Petition No. 34762 of 95 and other connected Writ Petitions listed for hearing, as such, this Writ Petition has also been heard along with those writ petitions and all these Writ Petitions are being disposed of by one common order.

2. The facts of the cases in the nutshell are that in all these cases, in proceeding under Section 5 of Act No. 2 of 79, the Assistant Commissioners have ordered resumption of the granted land as mentioned and described in the petitions and the orders and the appeals filed by the transferees - petitioners have been dismissed and disposed of by the Deputy Commissioners concerned affirming the orders of resumption and restoration of the land to the grantees or their heirs.

3. The contention on behalf of the petitioners has been made to the effect by Sri Mohandas N. Hegde as well as by Sri Sripathy and by Sri R.M. Nawaz, holding brief for Sri Abdul Khader that the orders made by the Assistant Commissioners as well as by the Deputy Commissioners suffer from jurisdictional error. The learned Counsel for the petitioners contended that the Act, that is, the Karnataka Scheduled Case & Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, (Act No. 2 of 79), is applicable only with respect to the granted land as defined in the Act, namely, the land granted land as defined in the Act, namely, the land granted by the Government or the Government's authorities in favour ot persons belonging to the castes classes which are described as Scheduled Castes or Scheduled Tribes. The learned Counsels contended that at the time when the grant was made in favour of the alleged grantees, there was no such thing as Scheduled Caste. Expression 'Scheduled Caste' is an innovation under the Constitution and the Scheduled Caste is a later development, so he contended that the land which had been granted to the grantees, where the lands cannot be said to have been granted to the Scheduled Caste persons, the further contention has been to the effect that before exercising the power under Sections 4 and 5 of this Act No. 2 of 79, the authorities had as well as have to investigate and to record a finding atleast prima facie finding, that the grantees were none-else, but they belonged to Scheduled Caste or Scheduled Tribe and no finding has been recorded or arrived at by either Assistant Commissioners or by the Deputy Commissioners and without investigating the question or without recording the finding, they could not proceed or pass order of resumption of the land.

4. My attention was invited to the Division Bench decision in the PAPIREDDY'S case, wherein the Division Bench has observed that Assistant Commissioner cannot declare the alienation or sale of the land as void unless he records the finding that (a) grant was made in favour of a person belonging to Scheduled Caste or Scheduled Tribe, (b) That the grant was on either upset price or free grant and that the alienation had taken place in violation of the prohibition against alienation. Learned Counsel contended that firstly authorities had to come to a conclusion that the grantees belonged to the Scheduled Caste.

5. I have been taken through the record and the orders of the authorities concerned.

The contentions of the learned Counsel for the petitioners have been hotly contested by the learned Government Pleader - Smt. Shantha Kumari. The learned Government Pleader contended that it has been observed that the grants were in favour of depressed class of persons and being the depressed class persons, it should be taken that the grant was made in favour of the Scheduled Caste persons and therefore, she submitted that the persons belonging to depressed class should be taken to be a person belonging to Scheduled Caste.

6. I have applied my mind to the contentions made by the learned Counsel for the parties.

The granted land has been defined in Section 3(1)(b) of the Act as under:

'Granted Land means any land granted by the Government to a person belonging to any of the Scheduled Castes or Scheduled Tribes and includes the land allotted or granted to such persons under relevant law for the time being in force relating to agrarian reforms or land ceilings or abolition of inams, other than that relating to hereditary offices or rights and the word 'granted' shall be construed accordingly.'

My attention has also been invited to Clause (d) of Section 3(1) which defines expression Scheduled Caste and Scheduled Tribes as under:

3(1)(d):- 'Scheduled Castes and Scheduled Tribes 'shall have the meaning respectively assigned to them in the Constitution;

This clause per se reveals and provides with clarity that for the purpose of this Act, expression Scheduled Caste and Scheduled Tribe has to be interpreted and has to be considered in the light of the definition given of this term in the Constitution of India.

7, Article 366 clauses 24 and 25 of the Constitution defined the expression 'Scheduled Castes' and Tribes as under:

'366(24):- Scheduled Caste means such Caste, races or tribes or parts or groups within such castes, races or tribes as are deemed under Article 341, to be the Scheduled Caste for the purpose of this Constitution.

366(25):- Scheduled Tribes means such tribes or tribal communities or parts or groups within such tribes or tribal communities as are deemed under Article 342 to be the Scheduled Tribes for the purposes of this Constitution.'

In view of the definitions of expressions 'Scheduled Caste' and 'Scheduled Tribes' as given in Article 366, it will be appropriate to refer to Articles 341 and 342 of the Constitution of India.

8. Article 341 of the Constitution reads as under:

'341(1) The President may, with respect to any State or Union territory and where it is a State.... after consultation with the Governor..... thereof, by public notification, specify the castes, races or tribes or parts of or groups within castes, races or tribes which shall for the purposes of this Constitution be deemed to be Scheduled Castes in relation to that State or Union territory, as the case may be.

(2) Parliament may by law include in or exclude from the fist of Scheduled Castes specified in a notification issued under clause (1) any caste, race or tribe, or part of or group within any caste, race or tribe, but save as aforesaid, a notification issued under the said clause shall not be varied by any subsequent notification.

Article 342 reads as under:

342(1): The President may with respect to any State or Union territory and where it is a State.... after consultation with the Governor... thereof by public notification, specify the tribes or tribal communities or parts of or groups within tribes or tribal communities which shall for the purposes of this Constitution be deemed to be Scheduled Tribes in relation to that State or Union territory, as the case may be.

(2) Parliament may by law include in or exclude from the list of Scheduled Tribes specified in a notification issued under clause (1) tribe or tribal community, but save as aforesaid, a notification issued under the said clause shall not be varied by any subsequent notification.'

A reading of these articles, per se reveals that Scheduled Castes are those castes which are specified by the President of India under Article 341, to be deemed for the purpose of this Constitution to be the Scheduled Caste in relation to a State or union territory or as the case may be. No doubt, Article 341(2) empowers the parliament that, it may, by law include or exclude from the list of Scheduled Caste specified in the notification issued under Clause (1) of Article 341, any caste, race, tribe or any part or group within a caste- or tribes, but it provides that except as indicated in Article 341(2), the aforesaid notification issued by the President under Clause (1) of Article 341, shall not be varied by any subsequent notification. Similarly, Scheduled Tribes have also been described as constituting tribes or tribal communities or groups in tribes or tribal communities, providing that such and such a community for the purpose of Constitution, shall be deemed to be the Scheduled Caste in the State or Union territory, as the case may be. In that regard, the amendment in the notification by exclusion or by inclusion can be made by the parliament by a law, and it has been provided that list notified under Article 341(1), shall not be altered or amended, otherwise, than by an act of the parliament.

9. For the purpose of Section 2(3), Scheduled Caste means, the caste or persons belonging to particular caste and the caste to which a person belongs or belonged, if that has been notified under Article 341, by the President of India, to be deemed to be Scheduled Caste or has subsequently been included in the notification by the enactment of parliament shall be deemed for the purpose of the Constitution as well as Act to be Scheduled Caste. May it be that earlier, it may not have been notified as the Scheduled Caste or there may not be any such thing as the Scheduled Caste. No doubt, the expression Scheduled Caste has got a history and in any way, we find this expression used in the Government of India Act 35, in relation to the Constitution of the Assemblies.

10. In the context of the Constitution of the Federal Assemblies under the Government of India Act, it had been provided vide Clause 18 of the 1st Schedule that out of the number specified in the general seats, certain number of specified seats in 4th column shall be reserved for the members of Scheduled Caste vide Clause 26 of first Schedule of Government of India Act, 1935.

Scheduled caste means such castes, races tribes or part or groups within races or tribes being castes, races, tribes part or groups which appeared to his Majesty in Council to correspond to the class of persons formerly known as depressed classes, as his Majesty may specify. In the Independence of India Act, 1947, and order bearing title 'The India Provisional Constitutional Order', under Section 6, certain provisions of Government of India Act were adopted and as per schedule to that Act, the definition of Scheduled Caste has been provided in the same terms as it had been defined in the schedule to Government of India Act, namely, Scheduled Caste means such castes, races or tribes or part or groups within castes, races or tribes mean castes, races, tribes or part of groups which appeared to the Governor General to correspondent to the classes of persons, known as depressed classes, as the Government General by order may specify. A reading of these definitions given in the Government of India Act as well as Independence of India Act and the Constitution of India, clearly reveals that Scheduled Caste by itself is no caste.

11. Scheduled Caste consists of castes, races, tribes or parts or groups therein which after considerations according to law under the Government of India Act or under the Independence of India Act, the Governor General used to specify as the castes included within the framework of expression Scheduled Caste. No doubt the yardstick had been indicated to the Governor General in the Government of India Act and the independence of India Act and the India Provisional Constitutional Order, that the persons or the castes corresponding to the classes formerly known as depressed classes, that is, known as depressed classes earlier to Government of India Act 35. But merely because a person was of depressed class could not be termed to belong to Scheduled Caste until and unless the Governor General had so specified that such a caste is to be deemed and taken to be Schedule Caste. So. declaration or specification by the Governor General was essential under the earlier law.

12. Under our present constitution, the position is that President has been given power to specify and to declare to specify the castes, races and tribes or groups within the castes, races or tribes to be deemed for the purpose of the Constitution to be Scheduled Caste in relation to the State. It means, that after the constitution, a caste may belong to the Scheduled Caste or a race may belong to Scheduled Caste or Scheduled Tribe, as the case may be, provided after coming into force of the Constitution, the said caste has been included in the notification specifying the castes declared to be and deemed to be Scheduled Caste for the purposes of the Constitution. It means, that a case might not have been a Scheduled Caste under the Government of India Act, but if the same had been specified by the Present, later on under the constitution, for the purpose of the Constitution, it will be deemed to be Schedule Caste, for the purposes of law under the Constitution.

13. If a caste or tribe had been specified by the Governor General under Act No. 35, to be the Scheduled Caste, but in the notification which has been issued by the President of India in Article 341 of the Constitution the name of that caste stands omitted and is not included in that list, the said caste cannot be said to be Scheduled Caste, excepting those cases where it may be shown that really, the person belonged to the caste which was known as enacted in the list. It means, that Scheduled Caste is a caste included in the Schedule or in the notification issued by the President. It may consists of one caste, one race and consists of many castes, but those castes must have been specified in the notification either in original, as issued by the President or as amended by the parliament by an Act.

So, in such a case, it. has to be examined in the context of Act No. 2 of 79, as per definition given in Section 3(1)(d), whether the person to whom the land had been granted, did he belongs to a caste, race or tribe which has been included in the list of Scheduled Caste persons, as notified by the President of India under Article 341 or by virtue of its amendment by Act of Parliament in relation to the State. If the person belonging to that caste, race, tribe or which had been included in the list or generally had been notified by the President to be deemed to be Scheduled Caste, then deeming clause has to be given its full effect.

So, reading these provisions, in my opinion, the authorities in all these cases have to look and examine into is: What is the caste of the grantee and did this caste finds place in the list of Scheduled Caste, as notified by the President of India? The approach of the authorities in all these cases appears to be that the land had been granted to persons, as depressed class persons, persons may be akin to or may have belonged to depressed class earlier to the Government of India Act, is not only material, neither it was material when the Government of India Act was there. The akinness to Depressed Class was material only to the extent under the Government of India Act, that when the Governor General had to exercise his power to specify the caste to be a Scheduled Caste, he has to apply the yardstick or test whether the caste or the persons of that caste are correspondent to what is called as depressed clas.s. The correspondence to the classes of persons known as depressed class at that time had the relevance and if they did not correspond to depressed class, the Governor General could also hot have specified that community as the Scheduled Caste, but specification and declaration has always been material and an order to that effect by Governor General need to passed under Government of India. Under the present Constitution, the framer of the Constitution omitted those expressions which under Government of India, were used, that person or class of persons must correspond to what has been known as depressed class; for being notified in Schedule to the Schedule Caste.

14. Article 341 provides that President may with respect to any State or Union Territory after consultation with the Governor, specify the caste, so specification of caste, group or tribe, within a caste, race or tribe by the President of India as Schedule Caste and the issuance of such notification is essential condition whether a notification to that effect has been issued is essential fact and if the name is included in the notification by the President that the person belonging to that particular caste, be deemed to be person belonging to Scheduled Caste. The yardstick of depressed class may be material or not, it is different question, but what is essential is that, that particular caste or tribe should have been specified under the presidential notification in original or atleast after its amendment by the law of parliament. The same definition will hold good for the purpose of the Act, in view of the definition given in Clause (d) of Section 3(1).

15. In all these Writ Petitions, it does not appear that the authorities below have applied their minds to this question, namely, to which caste the grantee did belong and whether the caste to which the grantee belonged finds place in the list of Scheduled Caste, as notified by the President of India under Article 341. The other submissions were also made, I need not go into all those questions.

All these Writ Petitions have to be allowed and the orders impugned have to be quashed and the authorities, that is, the Assistant Commissioner concerned in all these cases need be directed to first decide the question whether the grantee did belong to a caste which has been specified as Scheduled Caste in relation to that State.

16. The learned Government Pleader and the Counsel for the respondents Sri Ashwathanarayana Reddy, contended that presumption under Section 5(3) of Act 2 of 79, is to be applied. In my opinion, this contention is without force. Section 5(3), provides the presumption that, if there is any person in possession of the granted land as defined in the Act and the person is someone else than the grantee or his legal heirs, then his possession shall be deemed to be illegal, null and void and it will be deemed to have been acquired under transfer which is illegal and void. Section 5(3) contain a statutory presumption to be raised. Whether a person belonging to Scheduled Caste or not? Section 5(3), is part and parcel of Act 2 of 79, will apply only in cases, where the grantee is admitted or established to be a person belonging to either Scheduled Caste or to Scheduled Tribe, in cases to which act will not apply, but if it is found that the grantees did not belong to either Scheduled Caste or Scheduled Tribe, there is no question of Section 5(3) of Act 2 of 1979, being applied. As such, the contention of the respondent's Counsels is without force, and these Writ Petitions are allowed and the orders impugned in all these writ petitions passed by Assistant Commissioner as well as by the Deputy Commissioners are hereby quashed.

17. Let a direction be issued to the Assistant Commissioners as under:

That the Assistant Commissioners will issue fresh notices to all these matters to the parties including the grantee. The Assistant Commissioners will try firstly the question and decide on the basis of the record or evidence whether did the grantees belong to the castes, races or tribes which are described as Scheduled Castes or Scheduled Tribes. In case, the finding on Issue No. 1, is that grantee belonged to Scheduled Caste or Scheduled Tribe, then he will proceed to decide the other issues, whether the alienation was barred under the grants or under the rules applicable at the time of the grant and the alienation in question has been in breach of the conditions of grant or rules applicable or it is void under Section 4(1) ?

If it is found that the grantee did not belong to Scheduled Caste, then there is no need to proceed further, because authorities in that case would have no jurisdiction to proceed further, but if is found that grantees belong to Schedule Castes, the Assistant Commissioner will consider and decide those cases on merits.

18. These Writ Petitions are allowed with the above direction and observation. Let the cases be decided expeditiously as far as possible, but in every case not beyond four months from the date of service or supply of this order. Costs are made easy.

Learned High Court Government Pleader Smt. Shantha Kumari, is allowed to file memo of appearance in all these petitions.