Karnataka High Court
Smt. Severine D'Souza vs Assistant Commissioner on 21 June, 1996
Equivalent citations: ILR1996KAR3552, 1996(7)KARLJ522
Author: P. Vishwanatha Shetty
Bench: P. Vishwanatha Shetty
ORDER P. Vishwanatha Shetty, J.
1. This petition is directed against the order dated 4.9.1995, the copy of which has been produced as Annexure-A, passed by the second respondent confirming the order dated 6.2.1992, the copy of which has been produced at Annexure-B, passed by the first respondent declaring the sale of land measuring 3 cents situated at Kadri-B Village, Mangalore Taluk, by means of a registered sale deed dated 25.8.1988 made by the husband of the third respondent as null and void and further directing that the said land is resumed to the Government.
2. Though this petition is posted for preliminary hearing, Sri M. Siddagangaiah, learned High Court Government Pleader is directed to take notice for Respondents 1 and 2 and also requested to appear as Amicus Curiae for the third respondent taking into account that the direction of notice to the third respondent is likely to cause financial loss and hardship to her. With the consent of the Learned Counsel for the petitioner and the Learned High Court Government Pleader; the petition is taken up for final hearing and disposed of by this order.
3. Sri Keshava Bhat, Learned Counsel for the petitioner, made two submissions. Firstly, he submitted that the grant of land in question was made to the husband of the third respondent under Clause 15 of the Madras Board Standing Order; and under Clause 15 of the Madras Board's Standing Order, the condition prohibiting alienation of the land granted to a depressed class person could be imposed provided the land was reserved for Harijan colony; and the land in question was not reserved for Harijan Colony (Scheduled Castes) and as such, there could not have been any condition prohibiting the sale of land in question permanently to persons other than Scheduled Castes. It is his second submission that since the third respondent, who had appeared before the first respondent, stated that she was not interested in getting back the land, the first respondent has seriously erred in law in directing that the said land has vested with the State Government and the State Government could resume the said land.
4. I am unable to accept both the contentions advanced by the Learned Counsel for the petitioner. In so far as the first contention is concerned, whether the land was reserved for a Harijan Colony or not, is purely a question of fact. The order impugned passed by the first respondent does not show that this contention was raised by the petitioner at any time. The petitioner has not produced the copy of the objections filed by her before the first respondent raising this contention. Under these circumstances, the petitioner cannot be permitted to urge this contention, for the first time before this Court. Further, it is also not disputed that the grantee of the land in question is a Scheduled Caste. Once it is admitted that the grantee is a Scheduled Caste, for the purpose of the Act, the land in question could be treated as a granted land within the meaning of Section 3(1)(b) of the Act. Sub-section(3) of Section 5 of the Act provides that where any granted land is in possession of a person other than the original grantee or his legal heir, it shall be presumed, until the contrary is proved, that such person has acquired the land by a transfer which is null and void under the provisions of Sub-section (1) of Section 4. Therefore, the burden is on the petitioner to establish that she has acquired the land by a transfer, which is not null and void under the provisions of Sub-section (1) of Section 4 of the Act. He has failed to discharge the said burden. Even otherwise, I am unable to accept the interpretation placed by the Learned Counsel for the petitioner on the Madras Board Standing Orders that unless the land is reserved for Harijan Colony, there could not be any condition provided in the grant order prohibiting the alienation of the land to persons other than Harijans permanently. Sub-clause (1) of Clause 41 of Board Standing Order-15 relied upon by the petitioner, reads thus:
"(1) Power of Revenue Officers to set apart land: In the case of villages which contain a considerable extent of land available for occupation, the Divisional Officer should, and in all other villages, he may, if he thinks it necessary in the interests of the Scheduled Castes set apart a specific area for assignment for cultivation to the Scheduled Castes."
Sub-clause (4) of Clause 41 of Board Standing Order 15, which provides for restriction to be imposed on the granted land, reads thus:
"(4) (i) Restrictions to be imposed on alienation: Assignments whether of ordinary land or of valuable land in these areas will be subject to the condition that the lands shall not be alienated to any person (whether a member of the Scheduled Castes or not) in any manner, before the expiry of ten years from the date of the grant nor even thereafter except to other members of these castes, (ii)................ (iii)..............
I am of the view that Sub-clause (1) of Clause 41 of BSO -15 mandates the Divisional Officer to set apart a specific area for assignment for cultivation, to the Scheduled Castes. It is an obligation imposed on the Divisional Officer to set apart the land for the purpose of assignment to the Scheduled Castes. The object of the said provision is to identify the land to be made available for the purpose of assignment to the Scheduled Castes. It is an enabling provision. The said provision cannot be understood and interpreted to mean that unless a separate area is set apart for Scheduled Castes for assignment, the provisions provided under Sub-clause (4) of Clause 41 of BSO-15 cannot be made applicable. Both the provisions have to be considered with the object and the purpose which the said provisions intend to achieve. The object of Sub-clause (4) of Clause 41 of BSO - 15, referred to above, is to prohibit the alienation of the land granted to Scheduled Castes to any one for a period of ten years from the date of the grant and for ever, to persons other than Scheduled Castes.
5. I also do not find any merit in the second submission of the Learned Counsel for the petitioner that since the third respondent had stated before the second respondent that she was not interested in getting back rhe land, the first respondent erred in law in directing that the land in question should be vested in the State Government and the State Government should resume the said land. Clause (b) of Sub-section (1) of Section 5 of the Act provides that where it is not reasonably practicable to restore the land to the original grantee or his legal heir, such land shall be deemed to have vested in the Government free from all encumbrances. Therefore, once it is held that the land in question came to be sold in contravention of either the terms of the grant or the law providing for such grant, such a transaction required to be declared, as null and void and no right, title or interest in such land is deemed to have been conveyed by such transfer to the purchaser of the land, and wherever it is not reasonably practicable to restore the land to such grantee or legal heir, the land is deemed to have vested in the State Government free from all encumbrances. Therefore, even if the third respondent had made the statement before the second respondent that she was not interested in getting back the land, the said statement will not enure to the benefit of the petitioner and on that ground, the petitioner cannot be permitted to urge that the transaction in question is not null and void. The handing over of possession of the land either to the original grantee or to his legal heir, is a consequence of declaring the transaction as null and void. Once the transaction is declared as null and void by the first respondent, what happens thereafter is not the concern of the purchaser and he has no locus standi to challenge that portion of the order. Further if the object of the Act is looked into and understood in proper perspective, the grantee or the legal heir does not have substantial say in the matter. It cannot be disputed that the Act is a beneficial legislation and it is intended to benefit a section of the society, who, to a large extent, are prone for exploitation by the affluent section of the society on account of their illiteracy, ignorance, poverty, social and cultural background and suppression by others over the years. Under these circumstances, if the third respondent, who is the beneficiary of the legislation, is to be deprived of the benefit of the law intended to help her on the basis of the statement made by her, it would run counter to the very object of the Act and the mandate of the law contained in Section 5 of the Act. Clause (b) of Sub-section (1) of Section 5 of the Act must be, in the context, understood as mandatory. Once the sale of the land is held to be null and void under the Act, the Assistant Commissioner is bound to restore possession of the land either to the original grantee or to his legal heir. If Section 5 of the Act is not so interpreted, it will be giving a handle to the purchasers of granted lands to continue to exploit the beneficiaries of the Act and deprive them of the benefit conferred on them under the Act. Every legislation has to be understood and interpreted having regard to the object of the legislation so as to make it more meaningful and workable.
6. In the instant case, it cannot be said that it is not reasonably practicable to restore the land in question to the third respondent. Presumably at the instance of the petitioner, the third respondent appears to have made the statement that she was not interested in getting back the land in question. Under these circumstances, I am of the view that the second respondent has erred in not directing delivery of possession of the land in question to the third respondent. Therefore, though the third respondent has not come to this Court challenging the order impugned passed by the first respondent resuming the land to the State Government and not directing handing over of possession of the land in question to the third respondent, I am of the view that to give full meaning to the provisions of the Act and the object behind the Act and in the interest of justice, keeping in mind the back-ground and the condition of the third respondent, I should exercise my power under Article 227 of the Constitution of India to modify the orders impugned for the purpose of giving a direction to the first respondent to hand over possession of the land in question to the third respondent. Therefore I make the following:
ORDER
7. The Writ Petition is dismissed and the orders impugned declaring the sale of the land in question as null and void are upheld.
8. Order Annexure-B dated 6.2.1992 passed by the first respondent and order Annexure-A dated 4.9.1995 passed by the second respondent are modified and the said orders to the extent it is directed that the land is resumed to the Government are quashed and the first respondent is directed to put the third respondent in possession of the land in question within two months from the date of receipt of this order.
9. Sri M. Siddagangaiah, learned High Court Government Pleader, is permitted to file his memo of appearance within four weeks from to-day.