Madras High Court
V.D.S.R.Re.Rolling Mill vs The Special Commissioner And ... on 10 July, 2012
Author: S.Manikumar
Bench: S.Manikumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 10.07.2012 CORAM: THE HONOURABLE MR.JUSTICE S.MANIKUMAR W.P.Nos.798 and 799 of 1993 V.D.S.R.Re.Rolling Mill rep. by its Partners Rajendra Kumar having his office at No.80, Theradi Street Thiruvannamalai town, Tiruvannamalai, Sambuvarayar District. ... Petitioner in both WPs Vs... The Special Commissioner and Commissioner of Land Administration Ezhilagam, Madras. ... Respondent in both WPS Prayer in W.P.No.798 of 1992 : Writ Petition is filed under Article 226 of the Constitution of India, praying for a Writ of Certiorari, calling for the records relating to the impugned order vide ka.No.G.24205/91 dated 19.06.1992 passed by the Special Commissioner and Commissioner of Land Administration, Ezhilagam, Madras-600 005, the respondent herein. Prayer in W.P.No.799 of 1992 : Writ Petition is filed under Article 226 of the Constitution of India, praying for a Writ of Declaration, and to call for the records relating to the impugned G.O.2555 of the Revenue Department, dated 14.056.1973 and declare that the impugned G.O. Namely G.O.Ms.No.2555 dated 14.05.1973 of the Revenue Department as illegal and null and void. For petitioner : M/s.Radha Gopalan (In both WPs) For Respondent : Mr.K.V.Dhanapalan, AGP (In both Wps) C O M M O N O R D E R
In W.P.No.798 of 1993, VDSR Re-rolling Mill, represented by its Partner, Rajendra Kumar, Thiruvanamalai District, has sought for a Writ of Certiorari, to call for the records, relating to the impugned order, vide Ka.No.G1 24205/91, dated 19.06.1992, passed by the Special Commissioner and Commissioner for Land Administration, Chennai, respondent herein. In W.P.No.799 of 1993, the petitioner has also sought for a declaration, declaring G.O.Ms.No.2555, Revenue, dated 14.05.1973, as illegal and null and void. As facts and submissions in both the writ petitions are common, this Court deems it fit to dispose of the same, by a common order.
2. According to the deponent, Mr.Rajendra Kumar, partner of the Mill, the firm has purchased the land in Survey No.1826/2B, measuring 0.95 Acres of land in Block No.32, of Ward No.4, Thiruvanamalai District, for consideration, from one "Pandiyan Re-rolling Mills", after due verification of the encumbrance certificate, title over the said property, right of the vendor to sell, convey or alienate, etc. Ever since the date of purchase, the petitioner has been in continuous possession and enjoyment of the property and that a Mill has also been constructed. While so, the petitioner was shocked to receive a notice from the Revenue Divisional Officer, Villupuram, of the erstwhile South-Arcot District, dated 09.08.1984, along with a copy of the order made in B.K.No.1706/32, dated 30.11.1924, passed by the Tahsildar, calling upon the petitioner to submit his explanation, as to why, the assignment made in the year 1924, to a member of the depressed class, should not be cancelled. Though the petitioner submitted an explanation, the Revenue Divisional Officer, Villupuram, by his proceedings, dated 05.11.1985, cancelled the assignment. Being aggrieved by the same, the petitioner preferred an appeal to the District Revenue Officer, Vellore. The said authority, vide Letter No.B2/1007/89, dated 18.03.1991, dismissed the appeal. Thereafter, the petitioner filed a revision petition on 02.05.1991, before the Special Commissioner and Commissioner for Land Administration, Chennai and that the said authority, while holding that the District Revenue Officer, Vellore, has no jurisdiction to pass an order of cancellation and taking note of G.O.Ms.No.2555, Revenue, dated 14.05.1973, vide order, dated 19.06.1992, cancelled the assignment made in favour of Subbaraya Pandaram. The order of cancellation, dated 19.06.1992 and G.O.Ms.No.2555, Revenue Department, dated 14.05.1973, stated supra, empowering the Special Commissioner and Commissioner for Land Administration, Chennai, to cancel the assignment, are challenged in the present writ petitions.
3. Placing reliance on the details of lands, assigned to the Depressed Classes (in short described by the learned counsel as 'DC lands') published by the Tahsildar, Tiruvanamalai, for the year 1955-56, said to have been obtained under the Right to Information Act, and enclosed in the Additional Typed set of papers and on the basis of the averments in the additional affidavit, Mrs.Radha Gopalan, learned Counsel for the petitioner submitted that the land in Old Survey No.1826, measuring an extent of 4 Acres, 8276 Sq.Ft., was initially classified as Tarisu and subsequently, it has been sub-divided into T.S.No.1826/2A, measuring 1.57 Acres, T.S.No.1826/2B, measuring 0.95 Acres and T.S.No.1826/2C, measuring 1.67 Acres respectively. She further submitted that the land in T.S.No.1826/2B, has been assigned in favour of one Subbaraya Pandaram. According to her, the said land has been sold to one "Pandian Re-rolling Mills" and from the list of DC lands, published by the Tahsildar, Thiruvanamalai District, for the year 1955 and 1956, the said land in T.S.No.1826 has not been shown as DC land and therefore, the question of cancelling the assignment after 1955, does not arise.
4. Inviting the attention of this Court to the entries in the Town Survey Register, Thiruvanamalai, submitted by the respondent, during the course of hearing, learned counsel for the petitioner submitted that even in the said register, the description of the property has been shown only as Ryatwari and lateron, as Tarisu and therefore, the lands in Survey No.1836/2B, can no longer be said to be a DC land and in such circumstances, the prohibition imposed cannot have any continuing effect and hence, the impugned order, dated 19.06.1992, cancelling the assignment, has to be set aside.
5. Without prejudice to the above, she further submitted that even assuming, without admitting for the argument sake, the land in Survey No.1826/2B, measuring an extent of 0.95 Acres, continued to be a DC land, G.O.Ms.No.2555, Revenue, dated 14.05.1973, which has deleted the limitation period of three years, for cancellation, from the date of assignment and conferred power on the Special Commissioner and Commissioner for Revenue Administration, Chennai, to order cancellation, can be given only prospective effect, ie., in the case of assignments, after the said date, as held in W.P.No.10277/94 and Second Appeal No.611/1998, dated 24.08.2005, and that therefore, the assignment made in the year 1924, in favour of Subburaya Pandaram, cannot be cancelled, after a long time.
6. According to the learned counsel, even assuming that if there was any violation or breach of conditions of assignment prior to the date of issuance of G.O.Ms.No.2555, the assignment, cannot be cancelled. In this context, she referred to Paragraph 24 of the order, made in W.P.No.1077 of 1994 and Second Appeal No.611 of 1998, dated 24.08.2005, wherein, the assignment cancelled in the above case, has been set aside.
7. Referring to Paragraph 7 of the impugned order, dated 19.06.1992, learned counsel for the petitioner submitted that as per G.O.Ms.No.2555, the Special Commissioner and Commissioner of Land Administration, has now become the original authority and when he was called upon to test the correctness of the orders passed by the Revenue Divisional Officer and the District Revenue Officer, Vellore, respectively, both on merits and jurisdiction, a duty is cast upon the Special Commissioner and Commissioner for Land Administration, to consider the documents and materials available on record, afresh and pass orders, on merits, instead of, mere cancellation of the assignment, by exercising the powers conferred on him, by virtue of the abovesaid G.O. According to the learned counsel, disposal of the revision petition, by stating that no fresh materials and points have been raised in the revision petition, amounts to failure to exercise his jurisdiction in proper perspective.
8. Learned Counsel for the petitioner also submitted that when a revision petition was filed before the Special Commissioner and Commissioner for Land Administration, Chennai, testing the validity of the order passed by the District Revenue Officer of the then South-Arcot District, dated 18.03.1991, confirming the order of the Revenue Divisional Officer, Villupuram, dated 05.11.1985, the respondent has categorically found that the District Revenue Officer, Vellore and Revenue Divisional Officer, Villupuram, has no jurisdiction to pass an order of cancellation. But, when the respondent himself has passed an order, dated 02.05.1991, in the revision petition, adverse to the petitioner, on the question of jurisdiction and cancelled the assignment made in the year 1924, the petitioner ought to have been provided with a notice or opportunity to submit his objections and according to her, no order prejudicial to the interest of the revision petitioner, can be passed, without providing an opportunity of being heard and in such circumstances, she submitted that there is a violation of principles of natural justice. For the abovesaid reasons, she submitted that the impugned order of cancellation is liable to be set aside.
9. As regards challenge to the validity of G.O.Ms.No.2555, Revenue, dated 14.05.1973, learned counsel for the petitioner submitted that since the abovesaid G.O., has been held to be prospective in nature, in W.P.No.10277/94 and Second Appeal No.611/1998, dated 24.08.2005, the W.P.No.799 of 1993, can be disposed of, on in the same lines, as done in the above Writ Petition.
10. Per contra, taking this Court through the contents of the grant, Mr.K.V.Dhanapalan, learned Additional Government Pleader submitted that lands assigned to the members of the Scheduled Caste community, cannot be sold or gifted or mortgaged or leased out to any other person, other than a member, belonging to the Scheduled Caste community and if done, then the competent authority is empowered to cancel the assignment and resume such lands, assigned to the landless persons, belonging to the abovesaid community.
11. Learned Additional Government Pleader submitted that no alienation is permissible within 10 years from the date of assignment, to a member of the Scheduled Caste community, without prior permission from the competent authority and instructions have been issued by the Government that if any, alienation is made, after 10 years from the date of assignment to any member, belonging the Scheduled Caste community, subject to the permission granted by the competent authority, and if any consequential request for mutation in the revenue records, viz., change of patta, is made, then the Tahsildar/Revenue Divisional Officer, should inspect the subject lands and pass appropriate orders.
12. Learned Additional Government Pleader further submitted that even after 10 years from the date of assignment, alienation of land can be made only to a member belonging to the Scheduled Caste community and not to others. He further submitted that the object of grant to a Scheduled Caste member (depressed class) is to improve the economic status of the poor and downtrodden, with a specific intention that there shall not be any alienation to a person, who does not belong to Scheduled Caste community. He also submitted that there is no time limit for cancellation of the assignment, if it is ascertained by the Revenue officials that the subject lands have been sold or gifted or pledged or leased out, to a third party, who does not belong to Scheduled Caste community.
13. Referring to G.O.Ms.No.2555, Revenue Department, dated 14.05.1973, learned Additional Government Pleader further submitted that the said G.O., may be applicable only to cases, where assignments could be cancelled within a a period of three years from the date of assignment, if the competent authority is satisfied that there had been a material irregularity in the procedure or that the decision was grossly inequitable or that it exceeded the powers of the Officer, which regulated assignment of land, or for the matter, the said assignment was granted under a mistake of fact, owing to fraud or misrepresentation. He further submitted that if an order of assignment passed by an officer, subordinate to him, falls under the abovesaid circumstances, then the competent authority, can set aside or modify the decision. He further submitted that the said G.O., is not applicable to cases of contravention of conditions of assignment or the provisions, on the basis of which, the grant is made.
14. Reiterating the permanent restriction on alienation of the property to a member, outside the Scheduled Caste community and the further restriction that the assigned land shall not be alienated, even to a member of a Scheduled Caste community, within 10 years from the date of assignment, learned Additional Government Pleader further submitted that the said G.O., is not applicable to the present case, except to the extent that it may be applicable, insofar as conferment of jurisdiction and authority on the Special Commissioner and Commissioner of Land Administration, Chennai, to cancel the assignment. Thus, he reiterated that the cancellation of assignment of land, can be made, at any time, whenever there is contravention of terms and conditions of the grant or the Revenue Code or for both.
15. Taking this Court through the grounds raised in the revision petition, filed before the Special Commissioner and Commissioner for Land Administration, Chennai, learned Additional Government Pleader submitted that the averments proceed on the basis, as if, the restriction on alienation is imposed only for 10 years, ie., from 1924 to 1934 and that if any alienation is made to a member outside the Scheduled Caste community, after 10 years, from the date of assignment, then the competent authority or the Government have no powers to cancel the assignment and resume possession of the land assigned. According to him, such contentions are liable to be rejected in limini, as it is contrary to the very object of the grant. He further submitted that there shall not be any alienation forever by way of sale or gift or mortgage or lease to a third party, not belonging to the Scheduled Caste community and alienation is permissible only, after the period of 10 years from the date of assignment and that too, only in favour of another member of the same community.
16. Learned Additional Government Pleader further submitted that the very purpose and object of the distribution of land to the depressed classes, would be defeated, if the authorities are restrained from invoking the powers of cancellation and resumption, if any, alienation is found contrary to the terms and conditions of assignment or breach of the Revenue Code, is substantially proved. According to him, periodically, lands assigned to the members of the Scheduled Caste community, have been checked and wherever, there is breach of conditions of grant, entries have been made in the revenue records and action is also initiated for cancellation and resumption of land. In respect of land in Survey No.1826/2B, subject lands in this writ petition, there has been a breach of condition and accordingly, entries have been made in Thiruvanamalai Town Survey Register No.67.
17. Refuting to the contention of the petitioner that the subject lands have been described as Ryat and Government poramboke and therefore, the land assigned, can no longer be classified as DC land, learned Additional Government Pleader submitted that the said entries have been made after the cancellation of the assignment and that does not mean that the petitioner has acquired any title to the property or can seek for any indefeasible right to squat over the property.
18. As regards violation of principles of natural justice, learned counsel for the State submitted that prima facie, both the Revenue Divisional Officer and District Revenue Officer have categorically found that land assigned to one Suburaya Pandaram, has been sold to "Pandiyan Re-rolling Mills" and from the averments made in the supporting affidavit to the writ petition, from the said Mill, the petitioner, VDSR Re-rolling Mill, has purchased the same. According to him, the factum of contravention is apparent on the face of record. He further submitted that when no new facts or points were raised and when the limited raised to the petitioner, during the course of arguments in this writ petition, is whether the Special Commissioner and Commissioner for Land Administration, Chennai or the Revenue Divisional Officer, has the authority to cancel the assignment or not, after the period of three years from the date of assignment, there is no need for the Special Commissioner and Commissioner for Land Administration, Chennai, to issue any fresh notice to the petitioner, calling upon him to submit his explanation, as to why, assignment should be cancelled. He further submitted that the explanation of the petitioner has already been considered by the authority and that he has found that the alienation is contrary to the conditions of grant.
19. He further submitted that when the petitioner himself in his explanation has admitted that the land has been purchased, without knowing the conditions and requested the authority to recommend to the Government to confer right on the property and in such circumstances, then, no new facts have been introduced at the revisional stage and no fresh materials have been considered, behind the back of the petitioner and in such circumstances, it cannot be said that prejudice has been caused to the petitioner.
20. Learned Additional Government Pleader further submitted that natural justice envisages fairness in action and providing a reasonable opportunity to the petitioner to putforth his case before an issue is decided. According to him, at each and every stage, sufficient opportunity has been given to the petitioner to substantiate, as to whether, the alienation made to him, is justified in law or not. As the contravention of the conditions of grant is per se apparent on the face of the record and when the Government Order empowers the respondent to pass orders, it cannot be said that there was any prejudice or violation of the principles of natural justice. He submitted that principles of natural justice is not a straight jacket formula and it depends upon facts and circumstances of each case. He therefore submitted that the plea regarding violation of principles of natural justice has to be rejected. 21. According to the learned Additional Government Pleader, the decision made in W.P.No.10277/94 and Second Appeal No.611/1998, dated 24.08.2005 and Manohar Lal v. Ugrasen reported in 2010 (11) SCC 557, relied on by the learned counsel for the petitioner, are inapposite to the facts of this case, where assignment has been cancelled for contravention of the conditions of grant. For the abovesaid reasons, he submitted that considering the nature of lands, the conditions of grant, the cancellation ordered by the Special Commissioner and Commissioner for Land Administration, Chennai, has to be sustained. According to him, there is no manifest illegality and irregularity in the impugned orders. Hence, he prayed for the dismissal of the writ petitions.
22. Heard the learned counsel for the parties and perused the materials available on record.
23. Before adverting to the case on merits, let me extract some of the provisions in the Board Standing Order (hereinafter referred to as "Revenue Code" for convenience).
24. Part II of Revenue Standing Orders deals with disposal of land. Standing Orders 15(1)(i) of the Board of Revenue (Volume I, Chapter 1) deals with the grant of lands for occupation and it is extracted hereunder:
"General principles :- (i) Before making an assignment, the officer, who is competent to order the assignment, should consider whether the land is to be required for public purpose in the near future or whether a permanent grant may be made. In the former case, or when any special reasons exist which make it inadvisable for Government to commit themselves to a permanent grant, the assignment should be on a temporary basis and power should be reserved to Government to resume the land at their pleasure at any time, unless and until the assignment has been declared absolute by them. When such a power of resumption is reserved to Government, the order of assignment should indicate clearly what compensation, if any, would be payable in the event of resumption. Where no such power has been reserved, the land would, if required for a public purpose, have to be acquired under the Land Acquisition Act and compensation paid to the grantee in accordance with the provisions of that Act.
(ii) Unless the assignment is definitely temporary, or unless it is subject to conditions intended to limit permanently, the assignee's property rights over the surface soil, the grant should, for purposes of acquisition, be treated as an outright assignment and the land acquired under the Land Acquisition Act, if it is required for any public purpose. Where the assignment is definitely temporary, or where it is subject to conditions permanently limiting the assignee's property rights over the surface soil, suitable provisions should be inserted in the order of assignment for resumption of the land and the payment of equitable compensation in the event of the land being required for public purposes. Cases in which special conditions have been imposed, not for the purpose of limiting the grantee's property rights over the surface soil but solely for the purpose of safeguarding his ownership of the land must be treated in the same manner as outright assignments in which there are no conditions restricting the grantees' powers of disposal over the land.
(iii) Care must be taken to see, that, in all cases of disposal of land, the conditions of the grant are fully settled and clearly mentioned in the order of the assignment. When special conditions are imposed, each such special condition should contain a clause that Government may resume and re-enter the lands if the condition is infringed, unless the usual conditions cover this contingency." [G.O.Ms. 1538, Rev. dt. 24.6.40, B.P.I 18, Press, dt. 11.1.40, Memo.No. 1760-F/42-1, Rev, dt. 11.1.40, B.P.31. Press, dt. 20.6.42 and G.O.Ms.3316, Rev. dt. 5.9.58]
1.A.(i). Grant of land by the Government in the form of assignment, alienation, lease, etc., is governed by the provisions of the Government Grants Act (Central Act). According to the provisions in the Government Grant Act, grant of Government land will not be governed by the provisions of the Transfer of Property Act, unless specific provisions are made in the order of grant by the Government that title to the property will pass on to the assignee subject to complying with the conditions of grant or after the expiry of a certain period. The grantee of the land, therefore, does not acquire title, simply under the orders of grant of land by the Government.
(ii) The land may be assigned for private purpose, such as for cultivation, for house site and for industrial purposes free of land value or on payment of land value, subject to the conditions imposed in order of grant. The land would be available with the grantee, so long as the conditions of grant are satisfied. The question of acquisition of title to the land will be governed only by the conditions of grant and not otherwise.
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(v) Assignment of land on payment of value:- In case, the land is assigned, on payment of land value and a condition was imposed in the order of grant, to the effect that the assignee could not dispose of the property, then the land could be resumed, if the land was either not utilised for the purpose for which it was granted, within the specified period or alienated to others, even after utilising the land.
(vi) Payment of compensation on resumption :- Regarding the payment of compensation of the land or improvements made therein or towards structures erected, in the case of lands assigned, on payment of land value, if a condition was imposed to the effect that no compensation would be paid towards the land value or improvements made therein or towards structures erected, and if the land is resumed for violation of the conditions of grant, then the land could be resumed, without payment of compensation to land value or improvements made or structure constructed. If the condition imposed relates only to the non-payment of compensation to the improvements made or structures erected, then it should be taken for granted that no compensation should be made to the land value also.
(viii) Payment of compensation on resumption :- If, on the other hand, a condition was imposed to the effect that the assignee could not alienate the land after expiry of the specific period, within which the land should be utilised then the land could be resumed, without payment of compensation to the land or for the improvements made or the structures constructed, if the land is alienated, at any time, notwithstanding the fact that the conditions of grant are complied with. [G.O.Ms.No.6l9, Rev. dt. 17.3.1977]
25. RSO 15(2)(2) deals with lands reserved for special purposes. As per the provision, land is said to be "reserved" when it is earmarked as being required or likely to be required for special purposes, an entry being made in the settlement register and village adangal, and also in the prohibitive order book. Land reserved for Scheduled Castes need not however be entered in the prohibitive order book, but the necessary entries should be made in the settlement register and the village adangal. Before any land which is not assessed can be assigned, it must be transferred to assessed. After transfer the ordinary rules under section 11 apply. The Divisional Officer may order such transfers, subject to the provisions of paragraphs 36 and 38 below. He may also order the transfer of "assessed" and "unassessed" land to "poramboke" and their entry as "reserved".
26. RSO 15(3)(2)(ii) defines "Landless persons", which means a person, who owns a total extent of less than 1.21.5 Hectares of land, if dry, or a total extent of less than 60.5 acres, if wet. "Assigning Authority" as defined in RSO 15(3)(2)(x) means, the Revenue Divisional Officers shall be the authority competent to assign all valuable lands under the rules subject to the maximum limit of 0.60.5 hectares if the land is wet or irrigable dry and to the maximum limit of 1.21.5 hectares if the land is dry. Similarly, Tahsildars shall be competent to assign non valuable lands, subject to the above limit. The monetary powers fixed for assignment of cultivable land is only for provision of land to eligible poor persons as per the norms fixed. In all other cases, where the cost is to be collected from the assignee or beneficiary, proposals should be sent to the Government for orders. [B.P.Perm. 2929(B) dt. 2.7.1971]
27. RSO 15(3)(3) speaks about, who are eligible for assignment and it reads as follows:
"(3) Who are eligible for assignment:- (i) Only landless and poor persons who are likely to engage themselves in direct cultivation shall be eligible for assignment of land free of land value subject to the conditions of assignment, imposed in the 'D' Form patta. Co-operative societies consisting entirely of landless and poor persons who are likely to engage themselves in direct cultivation, shall also be eligible for cost free assignment of both valuable and non-valuable lands provided lands are available in compact blocks. [G.O.No.296, Rev. dt. 10.2.1954 and B.P.Mis.No.1791, dt. 21.12.1956]
28. Standing Order 15(12) deals with Communication of Orders on Darkhasts which runs as follows:
"(12) Communication of orders on Darkhasts:- (1) Form and Contents:- The Tahsildar's order sanctioning the assignment of the land should be recorded in the 'A' Memorandum received from the village and the duplicate copy of the Memorandum, with the Tahsildar's order, should immediately be sent to the village authorities. It should also be communicated at once by the Tahsildar to all the parties concerned, printed endorsements in Form D given in Appendix V being used for the purpose. In part of the Tahsildar's work are promptitude and system more important than in the disposal of darkhast cases. While on tour, he should dispose of any darkhasts that may be pending in the villages visited. [B.P.1943, dt. 1.9.86, G.O.406, dt.12.5.03, G.0.687, dt. 9.5.08, B.P.79, dt. 22.4.08, B.P.123, dt. 19.6.08, B.P.l23,dt. 19.6.08 and G.O.Mis.3316, Rev. dt.5.9.58] (2) Conditional assignment:- In the case of each conditional assignment, the Tahsildar should specify in the order communicating to the Village Administrative Officer the fact that the assignment has been made and all the register of conditional to it that are to be entered in the village the file in the taluk office is not closed until a report supported by the revenue register has been received by him. [G.O.Ms.123, Rev. dt. 18.1.28, B.P. 5, dt. 31.1.28, and G.O.Ms. 3316, Rev. dt. 5.9.52] (3) Special Conditions :- (i) The assigned land shall not be alienated for a period of ten years from the date of assignment. In the event of the assignee wishing to dispose of the land after the above period, he should get prior permission of either the Tahsildar or the Revenue Divisional Officer, who should give permission only, if the sale is to one of the categories, eligible for assignment of Government/ Waste lands for cultivation purposes. [G.O.Ms.No. 2485, Rev. dt. 9.11.1979] The restriction on alienation cannot be enforced against the procedures in Court auction in satisfaction of decrees. [Govt. Lr.No. 11286/FN/71-6, Rev. dt. 24.11.71] The land assigned may be hypothecated to a co-operative society consisting entirely of landless and poor persons likely to engage themselves in direct cultivation. This prohibition shall not apply in a case where an assignee offers to give such conditionally assigned land to the Gramadan Sarvodaya Co-operative Society with specific understanding that he/she will not be eligible for further assignment of Government land on the pretext of becoming landless poor consequent on the gift of that land. The assignee can hypothecate the assigned land in favour of scheduled banks including Nationalised Banks for affording credit to the Agriculturists subject to the following conditions:-
(i) That loans for minor irrigation purposes should be contingent on ground water discipline.
(ii) The Commercial Banks can be allowed to lend for minor irrigation purposes on the security of the land assigned wherever Primary Land Development Banks are not able to lend for the purpose. [G.O.Ms.No. 397, Rev. dt. 21.2.1979 and B.P.Perm. 312, dt. 27.3.1979]
29. RSO 15(15) and RSO 15(18) deal with appeals and revision respectively and they are extracted hereunder:
"(15) Appeals :- From every original decision in darkhast cases whether it is passed by the Tahsildar, the Divisional Officer, or the Collector, one appeal shall be allowed, provided that it be made within 30 days of the date on which the original decision was pronounced or communicated if the appeal is from the Tahsildar to the Divisional Officer or from the Divisional Officer to the Collector and within 60 days, if it be from the Collector to the Commissioner of Land Administration. In computing the period of limitation the day on which the decision appealed against was pronounced or communicated and the time requisite for obtaining a copy of that decision shall be excluded. On all copies issued shall be entered the date of the decision or communication, the date of application for copy, the date on which the copy was ready for delivery and the date on which the appeal time expires. Any persons interested in the matter may appeal. Appeal to the Revenue Divisional Officer and to the Collector in Darkhast cases should be stamped with a court fee label to the value of two rupees and appeals to the Commissioner of Land Administration should be stamped with a court fee label to the value of five rupees.
From every original decision in the matter of assignment of house sites to Scheduled Castes, Scheduled Tribes and other eligible persons by the Special Tahsildar (Adi Dravidar and Tribal Welfare) concerned from the lands acquired with the funds of the Adi Dravidar and Tribal Welfare Department and taken possession of, one appeal shall be allowed to the District Adi Dravidar Welfare Officer provided, it is made within thirty days from the date on which the decision appealed against was pronounced or communicated and the time requisite for obtaining a copy of the decision shall be excluded. On all copies issued, shall be entered the date of decision or communication, the date of application for copy and the date on which the appeal time expires. Any person interested in the matter may appeal. Appeals to District Adi Dravidar and Tribal Welfare Officer shall be stamped with a court fee label of Rs.2/-.
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(18) Revision :- The order of the authority making the assignment if no appeal is presented or of the appellate authority if an appeal is presented, is final, and no second appeal shall be admitted. But if at any time within three years of the original or appellate decision in cases of assignment made after 14.5.1973 if the Revenue Divisional Officer / District Revenue Officer/Collector is satisfied that there has been a material irregularity in the procedure or that the decision was grossly inequitable or that it exceeded the powers of the officer who passed it or that it was passed under a mistake of fact or owing to fraud or misrepresentation, he may in the case of an order passed by an officer subordinate to him, set aside, cancel or in any way modify the decision. The Commissioner of Land Administration or the Government may set aside, cancel or in any way modify the decision of any authority subordinate to them, if they are satisfied that the decision was grossly in-equitable, etc. They may exercise these powers without any limit of fine (i.e.) even in case prior to 14.5.1973, where there has been a material irregularity in the procedure or where the decision exceeded the powers of the officer, who passed it or where it was passed under a mistake of fact or owing to fraud or misrepresentation. The authorities competent to pass orders in revision under this para may also grant stay pending their orders in revision. [Govt. Lr. 36741/LD3-1/97-1, Rev. dt. 15.7.97]
30. Maintenance of assignment records is given in RSO 15(21) and the same is reproduced hereunder:
"(21) Maintenance of assignment records :- Files of A and B Memoranda and the Register C should be maintained by the Village Administrative Officers, while a register in Form No.4 prescribed in the Taluk Manual should be kept in the Tahsildar's office. It will be the duty of the Tahsildar to have the village file of Memorandum and C Register examined and compared with the taluk register, and to submit the latter at the jamabandi to the Jamabandi Officer, with an attestation under his signature duly certifying that it is correct. It will be the duty of jamabandi officers to examine how far the rules in this Standing Order have been observed. [B.P. 159, dt. 18.3.90, B.P. 5632. dt. 9.9.63 and B.P. 10, dt. 28.2.22]
31. Standing Orders 15(29) under the caption 'D' FORM reference to the conditions of assignment is extracted hereunder:
"All conditions subject to which land is assigned or sold should be specified in the D Form or in the "Form of order of assignment by sale" printed in Appendix V. The "forms of notice or sale" printed in the same Appendix should be used for notifying such sales."
32. Standing Order 15(41) deals with reservation of land for assignment to Scheduled Castes and the powers of Revenue Divisional Officers to set apart the land which reads as follows:
"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. Land occupied on sivayijama may be included in the reserved list, but if such lands have been cultivated by the same person for three or more years, whether continuously otherwise, provided that they have not been cultivated by any other person in the intervening years, they should not be included in the list unless and until assignment has been offered to and referred by the sivayijamadar, when land is placed in the list is wrongly occupied, action should be taken promptly to evict the occupation. [G.O.Ms. 1736, Rev. dt. 11-10-26, B.P.Mis. 2480, dt. 29-10-26, G.O.Ms. 1215, Rev. dt. 10-7-33, B.P.Press, 53, dt. 17-7-33, and G.O.Ms. 3316, Rev. dt. 5-9-58] Note :- A person who is himself a convert may be assigned lands available for assignment from the reserved area while the second generation of converts will not be so eligible. [Govt. Memo.No.96861/Fl/70-10, Rev. dt. 22-10-1971
2) The needs of scheduled castes to be considered when lands are transferred to assessed waste:- In the case of transfer of considerable areas of poramboke or unassessed land to assessed, as for example, when reserved forests are disforested, or grazing poramboke are transferred to ayan, particular care should be taken that the present and prospected needs of the scheduled castes are considered.
(3) Darkhasts how dealt with:- Darkhast for land in such areas will be dealt with in accordance with the general rule above, but no application will be considered unless it is in the name, and genuinely on behalf of a member of the scheduled castes or of an approved society acting on behalf of the scheduled castes, such as a missionary or philanthropic or co-operative society. Assignment to societies by Tahsildars require the previous approval of the Collector. [G.O.Ms. 1934. Rev. dt. 11-8-20, B.P. 66, dt. 20-8-20, G.O.Ms. 118. Rev. dt. 7-6-29 and B.P.Ms. 1723. dt. 17-6-29] 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 grant not even thereafter, except to other members of these castes. However, in cases when the assignees offer to give such conditionally assigned lands to Gramdan Sarvodaya Co-operative Societies within 10 years from the date of assignment or even thereafter, the Tamil Nadu State Bhoodan Yagna Board is permitted to accept such gift of lands. The Collectors of the districts concerned are, authorised to relax the conditions of assignment of lands on receipt of a joint request from the Bhoodan Board and the donor. [G.O.Ms. 882, Rev. dt. 22-8-67 and B.P.Press 1546 (B) dt. 6-12-67]
(ii) Special conditions when to be imposed : - In cases of assignment outside these areas, the special conditions should be imposed only when concessions are enjoyed by assignees as being members of the scheduled castes. [G.O.Ms. 2557, Rev. dt. 22-12-32 and B.P.2, dt. 6-1-33 and G.O.Ms. 3092, Rev. dt. 12-12-40]
(iii) Power to re-enter in case of violation of conditions:- If the conditions of non alienation is violated or if the land ceases to be owned by the assignee or his legal heirs or (after the ten years) other members of their class, owing to sale by process of law or otherwise, or if default is made in the payment of the Government revenue on the dates prescribed, the grant will be liable to be resumed by the Government who will be entitled to re-enter and take possession of the land without payment of any compensation or refund of the purchase money. [G.O.Ms. 3316, Rev. dt. 5-9-58, B.P.Press, 16, dt. 20..41 and G.O.Ms. 3316, Rev. dt. 5-9-58]
(iv) Hypothecation to Government:- This prohibition does not however apply to hypothecation of the land to a co-operative institution advancing loans on the security of lands or to a scheduled bank including the Nationalised Banks for affording credit to the Agriculturists subject to the following conditions :
(i) That loans for minor irrigation purposes should be contingent on ground water discipline.
(ii) The commercial Banks can be allowed to lend for minor irrigation purposes on the security of the land assigned wherever Primary Land Development Banks are not able to lend for the purposes.
It does not also operate to debar payment of compensation if such lands are subsequently acquired under Land Acquisition Act. The power of resuming the grant and ordering re-entry referred to above will vest in the Revenue Divisional Officer in regard to valuable lands. Similar powers will be exercised by Tahsildar in regard to non-valuable lands. Both can exercise the powers subject to the limits (extent) prescribed. [G.O.Ms. 397, Rev. dt. 21-2-79] Where this limit is to be exceeded the previous sanction of the Government should be obtained. Lands unsuitable for assignment for some reason or other may be removed from the reserved list. As in cases of resumption and re-entry, the Revenue Divisional Officer will be the authority to eliminate valuable lands from the reserved list, and in regard to non-valuable lands, the Tahsildar will exercise similar power. The officer eliminating the land from the reserved list may use his discretion in deciding whether a particular land is unsuitable for assignment.
5(i) Concession regarding payment of assessment:- Assignment of lands to members of the scheduled castes the cultivation of which entails much labour, and expense will be free of assessment for a period of seven years from the date of the grant, but subject to the conditions that one-fifth of the extent assigned is brought under cultivation in each of the five years succeeding the grant. The exemption will be for seven years only and not for shorter periods. If however, an assignee whom the concession is granted fails to cultivate in accordance with the condition, assessment will be collected from the year in which the default occurs.
(ii) Procedure in granting the concession:- Applications from members of the scheduled castes for lands (other than lands already in their sivaijama occupation) the cultivation of which in the opinion of the Tahsildar involves much labour and expense should be reported to the Divisional Officer for orders on the question whether the lands should be exempted from the payment of assessment for a period of seven years. The Tahsildar should without reference to the Divisional Officers dispose of all applications for assessed waste lands which are fit for cultivation and are therefore not entitled to the concession. Against an order refusing the concession an appeal will lie to the Divisional Officer. [B.P. I4l, dt.27-10-36 and G.O.Ms. 3316, Rev. dt. 5-9-58]
(iii) Form of order of assignment to be used : - The special form of order to be used in the case of assignments to the scheduled castes is printed in Appendix V as "Special Form D". [B.P. Press 120, dt. 7-9-34 and G.O.Ms. 3316, Rev. dt. 5-9-58]
(iv) Assignment of lands to Scheduled Tribes:- In the matter of assignment "of lands for cultivation purposes the concession enjoyed by the Scheduled Castes as enumerated in R.S.O.No.15 -41, are extended to Scheduled Tribes also, subject to the modification that the maximum extent of land to be assigned to the Scheduled Tribes, will be 1-21-5 hectare of dry land, and 60.5 acres of wet land in hilly tracts, if sufficient lands are available. Any limitations imposed on Scheduled Castes, along with the concessions, are applicable to the Scheduled Tribes also. The form of order of assignment to be used, is the same as for the Scheduled Castes, mentioned in clause (iii) above, which should be adopted with suitable modifications, wherever necessary. [G.O.Ms.No.4027, Rev. dt. 29-10-1956 and B.P.Press No.1, dt. 17-1 -1959]
33. Perusal of the material on record and files show that by the proceedings of the Tahsildar, Thiruvannmalai, in D.K.1706/32, dated 30.11.1924, 0.95 Acres of land in T.S.No.1826/2B has been assigned to one Thiru.Subburaya Pandaram, subject to the conditions stated in the grant. The conditions are as follows:
VERNACULAR (TAMIL) PORTION DELETED Translated version of the above conditions of grant are as follows:
"1. If the land is alienated to any other person, not belonging to Scheduled Caste Community, either through sale or gift or mortgage or through lease, whatsoever, or if the land is transferred from the ownership of the person to whom the land was given in the beginning or to any other persons not belonging to the Scheduled Caste Community through the sale conducted in accordance with law or through any other means, or in case of failure to remit the Government tax within the stipulated date, the aforesaid land which was given is subjected to be taken back by the Government. The Government will have the right to enter into the aforesaid land and take the possession of the same. This exemption will not be applicable for obtaining loan for the development of the aforesaid land or as per the acts relating to granting of loans to the agriculturists, by mortgaging the same with the Government or with any of the Co-operative Associations, in which, the members belong only to the Scheduled Caste Community. The authority to pass orders to take over the aforesaid land and to re-enter into the land, lies within the office of the Revenue Divisional Officer.
2. If a costly and valuable land is mortgaged with an arrangement that the market value of the land shall be paid in instalments, the mortgagor shall not have absolute right over that land, till the aforesaid amount is fully paid. In the event of defaulting to pay any instalment, besides the amount already remitted shall being subjected to confiscation, by the Government, the said land shall be taken back again.
3. The mortgagor should bring all the portions in the land, which are cultivable in the land under mortgage, to cultivation, within five years. If this scheme is violated, the land shall be taken back again as mentioned in the 1st scheme."
34. Files disclose that as the assignee had no heirs, his brothers' sons, Munusamy Pandaram, Murugesa Pandaram and Thangavel Pandaram have enjoyed the above property and patta has been transferred in the name of Munusamy Pandaram. Subsequently, when the Revenue Divisional Officer, Thiruvannamalai, found that the subject lands have been sold to one Pandian Re-rolling Mills and thereafter, to the petitioner, who was found to be in possession, show cause notices, have been issued to the assignee and the vendors. In response to the notice, heirs of the assignee have admitted the sale. Mr.Rajendra Kumar, representative of VDSR Re-rolling Mills, Thiruvanamalai District, the petitioner herein, has also sent an explanation, but the petitioner has not appeared in person. In his explanation, it has been categorically admitted that without knowing the conditions of assignment, the land has been purchased and that he has invested huge amount for the industry. The petitioner has also requested to the Revenue Divisional Officer to relax the rules to give right over the land, duly recommending to the Government. Inasmuch as, violation/contravention of the conditions of the Revenue Code and the terms of grant, were per se apparent, the Revenue Divisional Officer, in his order A5.16262/84, dated 05.11.1984, has cancelled the assignment under RSO 15(3)(2)(1). Being aggrieved by the same, on 05.12.1984, the petitioner has preferred an appeal to the District Revenue Officer, North Arcot District, Vellore. On bifurcation of the Districts, during 1989, the concerned files have been forwarded to the District Revenue Officer, Tiruvannamalai. Upon considering the conditions of grant and the materials on record, the appellate authority, viz., The District Revenue officer, vide order in B2.1007/89, dated 18.03.1991, has confirmed the decision, cancelling the assignment. It is an indisputable fact of alienation of a land by an assignee, to a member outside the Scheduled Caste Community and for violation of conditions of grant and the Revenue Code and sufficient show cause notices have been issued to the Legal Representatives of the assignee, viz., Subburaya Pandaram and the Vendors and they have also submitted their explanation.
35. Now before adverting to the rival contentions, made by the parties, let me now consider some of the decisions of the Apex Court and various Courts, dealing with assignments granted to the weaker section of the society, the power of the competent authority in cancelling the assignment and resumption of lands.
36. In Manchegowda v. State of Karnataka reported in AIR 1984 SC 1151, the validity of Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 was challenged. The petitioners therein were purchasers of lands which had been originally granted by the State, to persons belonging to Scheduled Castes or Scheduled Tribes. Such lands had been originally granted to the abovesaid persons, under the provisions of law or on the basis of rules or regulations governing such grant. After the passing of the Act in question, notices have been issued by the appropriate authority to the transferees of such lands to show cause as to why the lands transferred to them should not be resumed for being restored to the original grantees or their legal heirs or for distribution otherwise to the members of Scheduled Castes and Scheduled Tribes in accordance with the provisions of the statute and in view of the provisions of the Act, it was also indicated that the transfers in their favour have become null and void. In the above reported case, the main grounds urged by the petitioner, before the Supreme Court and summarised at Paragraph 8, are as follows:
"1. Granted lands which had been transferred by the grantee in contravention of the prohibition imposed on the transfer of any granted land under the terms of the grant, under the rules relating to such grant, or under any law governing such grant, renders the transfer voidable and not void and it is not permissible to nullify such transfers and to declare them void by any provisions of the Act;
2. The power conferred on the authority to recover possession of the granted land on the basis of the provisions contained in the Act defeating the vested rights of the purchasers who have acquired such lands bona fide for consideration and have been in enjoyment and possession thereof for years is unconscionable, unjust and invalid;
3. Sections 4 and 5 of the Act which empower the authority to take possession of the granted lands without payment of any compensation are violative of Article 19(1)(f) of the Constitution.
4. Sections 4 and 5 of the Act contravene Article 31 and the second proviso of clause (1) of Article 31-A of the Constitution and are, therefore, void.
5. Invalidation of transfers of land granted to persons belonging to only Scheduled Castes and Scheduled Tribes and resumption of only such granted lands are discriminatory and they infringe Article 14 of the Constitution.
37. Sections 4 and 5 of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978, are extracted hereunder:
"4. Prohibition of transfer of granted lands.(1) Notwithstanding anything 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 or be deemed ever 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 provisions of sub-sections (1) and (2) shall apply also to the sale of any land in execution of a decree or order of a civil court or any award or order of any other authority.
5. Resumption or restitution of granted lands. (1) Where, on application by any interested person or on information given in writing by any person or suo motu, and after such enquiry as he deems necessary, the Assistant Commissioner is satisfied that the transfer of any granted land is null and void under sub-section (1) of Section 4, he may,
(a) by order take possession of such land after evicting all persons in possession thereof in such manner as may be prescribed:
Provided that no such order shall be made except after giving the person affected a reasonable opportunity of being heard;
(b) restore such land to the original grantee or his legal heir. Where it is not reasonably practicable to restore the land to such grantee or legal heir, such land shall be deemed to have vested in the Government free from all encumbrances. The Government may grant such land to a person belonging to any of the Scheduled Castes or Scheduled Tribes in accordance with the rules relating to grant of land.
(2) Any order passed under sub-section (1) shall be final and shall not be questioned in any Court of law and no injunction shall be granted by any court in respect of any proceeding taken or about to be taken by the Assistant Commissioner in pursuance of any power conferred by or under this Act.
(3) For the purposes of this section, where any granted land is in the 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.
38. Though no such similar enactment has been brought to the notice of this Court, yet clauses in the assignment order and the Revenue Code itself indicates restrictions on alienation of the assigned lands and also of the power of the competent authority to enter upon and resume possession, whenever, contravention is proved. As regards the object and the reasons for conferring such power and authority on the competent authority for resumption of land, in case of such alienation, contravening the provisions of the Act, referred to above, it is worthwhile to extract the relevant passages from the reported judgment and at Paragraphs 11 and 12, of the judgment in Manchegowda's case, the Supreme Court held as follows:
"11. It is no doubt true that before the passing of the present Act any transfer of granted land in breach of the condition relating to prohibition on such transfer would not have the effect of rendering the transfer void and would make any such transfer only voidable. The present Act seeks to introduce a change in the legal position. The prohibition on transfer of granted land had been imposed by law, rules or regulations governing such grant or by the terms of the grant. The relevant provisions imposing such prohibition by rules, regulations and laws have been referred to in the judgment of the High Court. It is quite clear that the condition regarding prohibition of transfer of granted land had been introduced in the interest of the grantees for the purposes of upkeep of the grants and for preventing the economically dominant sections of the community from depriving the grantees who belong to the weaker sections of the people of their enjoyment and possession of these lands and for safeguarding their interests against any exploitation by the richer sections in regard to the enjoyment and possession of these lands granted essentially for their benefit.
The need for an enactment, as explained by the Supreme Court, in the same paragraph, is as follows:
"As the Statement of Objects and Reasons indicates, this prohibition on transfer of granted land has not proved to be a sufficiently strong safeguard in the matter of preserving grants in the hands of the grantees belonging to the Scheduled Castes and Scheduled Tribes; and, in violation of the prohibition on transfer of the granted land, transfers of such lands on a large scale to the serious detriment of the interests of these poorer sections of the people belonging to the Scheduled Castes and Scheduled Tribes had taken place. In view of this unfortunate experience the Legislature in its wisdom and in pursuance of its declared policy of safeguarding, protecting and improving the conditions of these weaker sections of the community, thought it fit to bring about this change in the legal position by providing that any such transfer except in terms of the provisions of the Act will be null and void and not merely voidable. The Legislature no doubt is perfectly competent in pursuance of the aforesaid policy to provide that such transactions will be null and void and not merely voidable. Even under the Contract Act, any contract which is opposed to public policy is rendered void. The State, consistently with the directive principles of the Constitution, has made it a policy and very rightly, to preserve, protect and promote the interests of the Scheduled Castes and Scheduled Tribes which by and large form the weaker and poorer sections of the people in our country. This may be said to be the declared policy of the State and the provisions seeking to nullify such transfers is quite in keeping with the policy of the State which may properly be regarded as public policy for rendering social and economic justice to these weaker sections of the society.
12. In pursuance of this policy, the Legislature is undoubtedly competent to pass an enactment providing that transfers of such granted lands will be void and not merely voidable for properly safeguarding and protecting the interests of the Scheduled Castes and Scheduled Tribes for whose benefit only these lands had been granted. Even in the absence of any such statutory provisions, the transfer of granted lands in contravention of the terms of the grant or in breach of any law, rule or regulation covering such grant will clearly be voidable and the resumption of such granted lands after avoiding the voidable transfers in accordance with law will be permitted. Avoidance of such voidable transfers and resumption of the granted lands through process of law is bound to take time. Any negligence and delay on the part of the authorities entitled to take action to avoid such transfers through appropriate legal process for resumption of such grant may be further impediments in the matter of avoiding such transfers and resumption of possession of the granted lands. Prolonged legal proceedings will undoubtedly be prejudicial to the interests of the members of the Scheduled Castes and Scheduled Tribes for whose benefit the granted lands are intended to be resumed. As transfers of granted lands in contravention of the terms of the grant or any law, regulation or rule governing such grants can be legally avoided and possession of such lands can be recovered through process of law, it must be held that the Legislature for the purpose of avoiding delay and harassment of protracted litigation and in furthering its object of speedy restoration of these granted lands to the members of the weaker communities is perfectly competent to make suitable provision for resumption of such granted lands by stipulating in the enactment that transfers of such lands in contravention of the terms of the grant or any regulation, rule or law regulating such grant will be void and providing a suitable procedure consistent with the principles of natural justice for achieving this purpose without recourse to prolonged litigation in court in the larger interests of benefiting the members of the Scheduled Castes and Scheduled Tribes."
39. As regards the nature of the right of the transferee and the power to resume the land, without process of a long litigation, the Supreme Court, at Paragraphs 18, 19 and 21, held as follows:
"18. The transferees of the granted lands from the original grantees, acquired the lands improperly and illegally in contravention of the condition imposed on such transfers. Such transferees must have been aware and must in any event be deemed to have been aware of the condition regarding the prohibition on transfer and they cannot be considered to be bona fide transferees for value. Such persons acquired in the granted lands only a voidable title which was liable to be defeated and possession of such lands could be resumed from such transferees. Such a person who only acquires a defeasible legal right cannot make a grievance of any violation of Article 19(1)(f) of the Constitution, when the defeasible legal right is, in fact, defeated by appropriate legal action or by any suitable provision enacted in an Act passed by the competent Legislature. It may further be noted that in most cases such transferees have after the transfer, which is liable to be avoided in accordance with law, enjoyed for a sufficiently long period the benefits of lands transferred to them before the lands could be recovered from them. Article 19(1)(f), therefore, did not invalidate Section 4 of the Act.
19. We have earlier noticed that the title which is acquired by a transferee in the granted lands, transferred in contravention of the prohibition against the transfer of the granted lands, is a voidable title which in law is liable to be defeated through appropriate action and possession of such granted lands transferred in breach of the condition of prohibition could be recovered by the grantor. The right or property which a transferee acquires in the granted lands, is a defeasible right and the transferee renders himself liable to lose his right or property at the instance of the grantor. We have further observed that by the enactment of this Act and particularly Section 4 and Section 5 thereof, the Legislature is seeking to defeat the defeasible right of the transferee in such lands without the process of a prolonged legal action with a view to speedy resumption of such granted lands for distribution thereof to the original grantee or their legal representatives and in their absence to other members of the Scheduled Castes and Scheduled Tribes communities. In our opinion, this kind of defeasible right of the transferee in the granted lands cannot be considered to be property as contemplated in Articles 31 and 31-A. The nature of the right of the transferee in the granted lands on transfer of such lands in breach of the condition of prohibition relating to such transfer, the object of such grant and the terms thereof, also the law governing such grants and the object and the scheme of the present Act enacted for the benefit of the weaker sections of our community, clearly go to indicate that there is in this case no deprivation of such right or property as may attract the provisions of Articles 31 and 31-A of the Constitution.
21. With the enactment of the Act, the voidable right or title of the transferee in the granted lands becomes void and the transferee is left with no right or property in the granted lands. The lands which are sought to be recovered from the transferees of the granted lands are lands in which the transferees cease to have any interest or property. The effect of the provisions contained in Sections 4 and 5 of the Act is that the defeasible right or interest of the transferees in the granted lands is defeated and the voidable transaction is rendered void. We have earlier held that it is clearly open to the Legislature to declare void the transfers of granted lands in contravention of the condition of prohibition on transfer. As soon as such transfers are rendered void by virtue of the provisions of the Act, the transferee does not have any right in the granted lands so transferred, and possession is sought to be recovered of such lands in which the transferees have lost their right and interest. Therefore, the question of acquisition of any property by the State or any modification or extinguishment of right of property does not really arise and Article 31-A cannot be applied. We are, therefore, of the opinion that there is no infringement of Article 31 and Article 31-A of the Constitution. We may further observe that this aspect has been carefully and elaborately considered by the learned Judges of the High Court while holding that Articles 31 and 31-A are not violated."
40. In Lingappa Pochanna Appealwar Vs. State of Maharashtra and another, AIR 1985 SC 389, wherein, it is held as follows:
The Act in its true nature and character is a law relating to transfer and alienations of agricultural lands by members of Scheduled Tribes in the State to persons not belonging to Scheduled Tribes. Such a law does not fall within Entries 6 and 7 in List 3 of Sch. 7 but is within Entry 18 in List 2 and as such , is within Legislative competence of the State. The words other than agricultural land" in Entry 6 and the words 'but not including contracts relating to agricultural land" in Entry 7 in List 3 have the effect of delimiting the legislative power of the Union to make a law with respect to transfers and alienations of agricultural lands with respect to contracts in relation thereto. The power to legislate cannot be denied to the State on the ground that the provisions of Section 3(1) and 4 which provide for annulment to transfers by tribals incidentally trench upon the existing law, namely, the Transfer of property Act, 1882 or a law made by Parliament viz., the Specific Relief Act, 1963. The power of the State Legislature to make a law with respect to transfer and alienation of agricultural land under Entry 18 of List 2 carries with it not only a power to make a law placing restrictions on transfers and alienations of such lands including a prohibition thereof, but also the power to make a law to reopen such transfers and alienations. Such a law was clearly within the legislative competence of the State Legislature being relatable to Entry 8 in List 2 of the Sch. 7. Decision of Bombay light Court D/-21 and 27-6-19894 Affirmed.
41. In C.Arumughathan Vs. S. Muthusami Naidu and others, reported in 1991 (2) MLJ 538, in a civil proceeding, this Court considered, as to whether a member of the scheduled caste community can alienate the assigned land, to a person, other than the said community and at paragraph 17, discussed and decided as follows:-
17. As regards the validity of the alleged sale deed Ex. A-30 in favour of the first defendant's father in respect of item 42 of the suit properties, it is contended by the learned Counsel for the appellant that admittedly the property was originally assigned to Alagan by the Government and that it is a Panjamar Conditional assignment. The ninth defendant relied on Ex. B-19 patta. The lower court observed in para. 11 of the judgment that admittedly the said item was assigned in favour of Alagan; but there is no evidence to show under what circumstances, the patta was assigned in favour of the ninth defendant. It is to be noted that the ninth defendant is also claiming title only through the assignment in favour of Alagan. Though vaguely it is stated that patta was assigned in favour of the ninth defendant, it is seen that the property was originally assigned in favour of Alagan in the year 1922 and subsequently patta was issued in the name of the ninth defendant. Ex. B-19 is the patta relied on by the ninth defendant. The lower court commented upon that no assignment order was produced in favour of the ninth defendant. As already observed even the case of the plaintiffs is that the suit property was originally assigned in favour of Alagan. They traced title only through Alagan. The lower court has commented upon the non-production of the assignment deed to find out the condition under which the assignment was made in respect of the suit property. It is only for proper appreciation and to arrive at a just decision, the appellant now filed a petition C.M.P. No. 11549 of 1990" to receive an extract from the register relating to the assignment of the suit land in favour of Alagan in the year 1922 granted by the Tahsildar, Natham. The said certified copy clearly shows that the assignment, was made on 8.7.1922 in favour of Alaganthotti subject to the condition that the land should not be alienated to any person other than Panjamar and if it is done, it is liable for cancellation and resumed by the Government. It is seen from Ex.B-7 which is a certified copy of the chitta extract in the name of the ninth defendant that as per order dated 6.3.1934 the said land was assigned and the transfer of patta was made in the name of Arumughathan subject to the condition that the land should not be alienated in favour of any person other than Panjamar (Harijan) and if there is any violation, it is liable for cancellation and resumption to the Government. To the same effect it has been said in Ex. B - 8 also. These are certified copies of chitta issued by Revenue authorities. The authenticity of the same cannot be disputed. The document which is now sought to be produced as additional evidence in this case is only to substantiate the contention of the appellant that even in the year 1922 when assignment was made, there is specific condition that it should not be alienated to any person other than Panjamar (Harijan) and if it is done, it is liable for cancellation and the land would revert back to the Government. The learned Counsel for respondents 1 to 3 would submit that that condition is valid for ten years. We do not find any Standing Order of the Government to substantiate the said contention. On the other hand, it it clear from the very document that no period has been fixed. It is specifically stated that no alienation should be made to any person other than Panjamar and that if it is done, it is not valid and liable for cancellation and resumption by the Government. Now the question for consideration is what is the effect of the violation of the said condition. In this connection, the learned Counsel for the appellant drew our attention to the decision of the Supreme Court in The Revenue Officer and Ors. v. Prafulla Kumar Pati and Ors. (1990) 1 Judgments To-day 155, where their Lordships, while considering the scope of Sections 22 and 23 of the Orissa Land Reforms Act, 1960, with regard to restriction on alienation of land by Scheduled Tribes, held : "The transfer made in favour of persons belonging to Brahmin caste, without the prior permission of the Revenue Officer, by Scheduled caste persons in whose favour the assignment was made is void. On the other hand, the learned Counsel for respondents 1 to 3 drew our attention to the decision in Ayi Gounder v. Gabriel I.L.R. 1964 Mad. 728 and Sri Manchagowda v. State of Karnataka . In Ayi Gounder v. Gabriel I.L.R. 1964 Mad. 728, Veeraswami, J. (as he then was) held:
Though the grant was subject to prohibition against alienation in a particular manner, the grant certainly vested the ownership of the property in the grantee. The restraint against alienation merely applied to a transaction between parties and to a sale in invitum. In any case, a Court sale contrary to the prohibition against alienation cannot be said to be opposed to public policy.
After considering Manchegowda's case, this Court further held that, "It is clear from the above quoted decision that the transfer in question is opposed to public policy and on that ground also, it can be said that it is void. In the above quoted case, the Karnataka State passed a legislation to protect the interest of the weaker section, namely, scheduled castes and scheduled tribes and the said Act is constitutionally sought to be valid that the transferees cannot have in law or equity, a genuine or real grievance that their defeasible title is being defeated and they are being dispossessed of such lands. The fact that the land was granted to the ninth defendant is not in dispute in this case. As already held, the plaintiffs have not established that they perfected title by adverse possession. Hence in the face of the mandatory condition in the assignment in favour of Alagan that the land in question cannot be alienated in favour of any person other than Panjamar, namely, Harijan, since, the alienation was made contrary to the conditional assignment, we have no hesitation in holding under point 3 that the alienation in favour of the father of the first defendant under Ex. B-30 is invalid for the reason that it is a Panjamar conditional assignment in favour of Alagan B/o the ninth defendant. This point is found in favour of the appellant. In view of the findings on points 1 to 3, the appeal is to be allowed.
42. In K.Palaniappan alias K.Subramanian Vs. The Government of Tamil Nadu, represented by its Commissioner and Secretary, Revenue Department, Madras-9 and two others, reported in 1993 (1) L.W. 272, the dispute was with reference to assignment of land by a member of the scheduled caste community to another, who did not belong to the said community. The question was whether prohibition in clause (9) in Special Form-D of the Board Standing Orders was violative of the provisions of the Transfer of Property Act. Following the decisions in Sisili Ammal Vs. Sundararaja Naidu, reported in AIR 1946 Madras 52 and Manchegowda Vs. State of Karnataka reported in AIR 1984 SC 1151, the Division Bench of this Court presided over by Hon'ble Mr.Justice Dr.A.S.Anand, at paragraphs 4, 5 and 6, held as follows:-
4. Appearing for the appellant, the learned Counsel submitted that the condition imposed in Clause (9) of the Special Form D. Board Standing Order 15, para 9 was unreasonable as it would be violative of the rights available to a bona fide purchaser under the Transfer of Property Act. The other ground of attack by the learned Counsel for the appellant was that the restriction contained in Clause (9) prohibiting the alienation in favour of a non-Harijan by a Harijan was unconstitutional and therefore liable to be struck down.
5. Both the arguments raised by the learned Counsel for the appellant need not detain us, as the questions are no longer res integra. So far as the submission that the condition of restriction on alienation is violative of the provisions of the Transfer of Property Act is concerned, a Division Bench of this Court in Sisili Ammal v. Sundararaja Nairdu A.I.R. 1946 Mad. 52, while dealing with a condition, similar to the one contained in Clause (9) in this case, in the Crown Grants Act, 1895 held that though such a condition would be invalid if the grant was made by a private individual, the condition was perfectly valid in the case of a Crown grant. It was held by the Bench that the prohibition against alienation was not violative of the provisions of the Transfer of Property Act. The Supreme Court of India also in State of U.P. v. Zahoor Ahmad, considered a similar argument and repelled the contention identical to the one raised by the learned Counsel for the appellant. The apex court observed as follows:
"Section 3 of the Government Grants Act declares the unfettered discretion of the Government to impose such conditions and limitations as it thinks fit, no matter what the general law of the land be. The meaning of Sections 2 and 3 of the Government Grants Act is that the scope of that Act is not limited to affecting the provisions of the Transfer of Property Act only. The Government has unfettered discretion to impose any conditions, limitations, or restrictions in its grants, and the right, privileges and obligations of the grantee would be regulated according to the terms of the grant, notwithstanding any provisions of any statutory or common law."
Both the aforesaid judgments are the complete answer to the first submission made by the learned Counsel for the appellant.
6. Coming not to the second contention raised by the learned Counsel for the appellant, suffice it to say that the classification is both rational and has a clear nexus with the object sought to be achieved, that is to prevent alienation by exploitation of the Harijans by persons, other than Harijans. In Sri Manche Gowda v. State of Kamataka , the apex Court was considering the vires of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978, which provided for cancellation of alienation in contravention of the conditions relating to the transfer of such assigned land. Before the Supreme Court, the appellants were the purchasers of land which had been originally granted by the State of Karnataka to persons belonging to the Scheduled Castes and Scheduled Tribes under the provisions of law or on the basis of rules or regulations governing such grant. After the coming into force of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 (Karnataka Act 2 of 1979), notices were issued by the appropriate authority to the transferees of such lands to show cause as to why the lands transferred to them in violation of the terms of assignment should not be resumed for being restored to the original grantees or their legal heirs or for distribution other: wise to the members of Scheduled Castes and Scheduled Tribes. The question about the vires of such a condition was raised before the Supreme Court and it was repelled. The apex Court held that the object of the Act was to protect and preserve the economic interests of persons belonging to Scheduled Castes and Scheduled Tribes and to prevent their exploitation. The Supreme Court found that for the purpose of that Act, the classification has a clear nexus to the object sought to be achieved. The Bench expressed the view that special provisions made for the resumption of "granted" lands, originally granted to the members of Scheduled Castes and Scheduled Tribes and restoration of the same to the original grantees or their heirs and legal representatives and failing them to other members of these communities do not infringe Article 14 of the Constitution. In view of the settlement of law by the Supreme Court which has again been reiterated in Lingappa Pochanna v. State of Maharashtra, the second ground of attack viz., the unconstitutionality of the restrictions contained in Clause (9) of Special Form D, Board Standing Orders 15, paragraph 9 must also fail and holding that Clause (9) is constitutionally valid, we reject the argument raised to the contrary by Mr. Doraiswamy.
43. In Bandyamma Vs. Assistant Commissioner, reported in 1994 (1) Kar L.J. 1, the petitioner therein challenged an order passed by the Assistant Commissioner rejecting restoration of land to her and also prayed to quash the same. Lands were granted by the competent authority under Darkhast in proceedings dated 27.10.1937 in favour of one Munidodda, father of the petitioner. Munidodda was a member of the Scheduled Caste community. Following the grant, saguvali chit was also issued to him. Under the conditions of grant, the grantee was restrained from alienating the granted land for a period of 20 years. Therefore, it was submitted that the grantee could not have sold the granted land during the period of prohibition of 20 years. However, Munidodda sold the granted land in favour of one Channamma, the 5th respondent therein, under a registered Sale Deed dated 20-1-1949 for valuable consideration and subsequently the Channamma sold the land to Kamalaraja Shetty, respondent-6, who leased out the land in favour of respondent 3 and 4. Thus the respondents 3 and 4 became tenants. They filed an application in Form-7 under Section 48-A of the Karnataka Land Reforms Act, 1961, for registering them as occupants thereof, and that the Land Tribunal concerned having held an enquiry, granted occupancy rights in their favour, as prayed for. The appeal preferred against the order of the Land Tribunal granting occupancy in favour of respondents 3 and 4 was stated to be pending. It was contended that though the land was alienated by her father Munidodda, original grantee, he continued to be in possession and enjoyment thereof, till his death and thereafter, she was in possession and enjoyment of the same. She approached the Assistant Commissioner with an application for restoration of the land to her under Sections 4 and 5 of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978, on the ground that her father Munidodda transferred the land in favour of Channamma in contravention of the terms of the grant and that therefore she is entitled for restoration of the same. The Assistant Commissioner issued notice to the parties interested, held an enquiry by order dated 21-2-1989 declaring that the alienation of the granted land in question as null and void under Section 4 of the Act, on the ground of contravention of the condition of the grant and directed vesting of the land to the Government. Aggrieved by the order, the respondents 3 and 4 filed an appeal before the Deputy Commissioner. He allowed the appeal and set aside the order of the Assistant Commissioner, on the ground that the Rules under which the land was granted to Munidodda did not provide for imposition of any condition prohibiting the grantee from alienating the granted land, and that being the position, the grantee being free to dispose of the land granted to him, at any time, and the question of contravention of the condition of the grant did not arise and held that the alienation as valid. Aggrieved by the order of the Assistant Commissioner refusing to restore the land to the petitioner, she has filed a Writ Petition, contending inter alia, that learned Deputy Commissioner erred in holding that there was no provision in the relevant Land Grant Rules, under which the land in question was granted to Munidodda. Relying upon the Government Order No.R. 2122-81/ L.R. 368-28-5 dated 12-9-1929, she submitted that although no condition was imposed in the grant, at the time of grant of the land in question, the Government Order imposed a condition that for a period of 20 years, lands should not be sold and therefore, the Assistant Commissioner was right in justifying the alienation as null and void, but the Deputy Commissioner committed an error in taking a contrary view. Learned Additional Government Pleader supported the order of the Assistant Commissioner on the basis of the Government Order No.R. 2122-81/ L.R. 368-28-5 dated 12-9-1929. The contesting respondents 3 and 4 submitted that even assuming that the purpose of argument that it was a grant subject to non-alienation for 20 years and that the transfer being within the said period of prohibition, was void under Section 4 of the Act, yet the right or title to the land in question acquired by the respondents 3 and 4, being tenants thereof, by virtue of the grant of occupancy by the competent authority, viz., the Land Tribunal, under the Act of 1961 which is also a special legislation relating to inter alia conferment of ownership on tenants, cannot be defeated and Act 1961 was having a overriding provisions, under Section 138, as the Act was enacted earlier. On the above submission, the High Court framed tw0 points.
(1) Whether this Writ Petition calls for interference with the impugned orders?
(2) Whether the Assistant Commissioner has no jurisdiction to invoke the provisions of the Act in view of the provisions of the Act of 1961 in particular Section 138 thereof?
The Karnataka High Court held that the writ petition is maintainable and tracing Mysore Revenue Grant rules framed under Mysore Grant Revenue Code, ultimately found that the alienation effected by the original grantee was contrary to the conditional grant and quashed the order of the Deputy Commissioner.
44. In R.Chandevarappa & Others v. State of Karnataka reported in 1995 (6) SCC 309, the correctness of an order passed by the Assistant Commissioner, cancelling the assignment, found to be in violation of the Scheduled Castes and Scheduled Tribes Prohibition of Transfer of Certain Lands Act, 1975 and Revenue Code 43(5), was challenged. The appellant before the Supreme Court claimed that he had purchased the property from the sons and daughters of the assignee. Assignment was made to a member, belonging to Scheduled Caste community on 16.11.1951. Alienation was done on 16.10.1968. All the authorities, including the Division Bench of Karnataka High Court, confirmed the order of cancellation of the assignment. The main contentions of the appellant therein were that, the Act came into existence in the year 1978 and therefore, it has no retrospective operation. Alienation made prior to the Act cannot be set aside. Adverse possession was also pleaded. Per contra, it was the contention of the State that the prohibition for alienation of assigned land always remained and therefore, limitation would not run against the Government, when it was sold. It was further contended that as the alienation was in contravention of rule 43(5) of the Revenue Code, the appellant therein does not get any title to the land. The plea of adverse possession was also repudiated on the ground that adverse possession does not arise against the State.
45. The purpose of the assignment given to a member of the Scheduled Caste community, X, has been explained by the Supreme Court in Paragraph 6, of the judgment, as follows:
"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 par into the main stream 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 lease hold 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."
46. The decision rendered by the Apex Court in Muralidhar Dayandeo Kesekar v. Vishwanath Pandu Bade & Anr.[JT (1995) 3 SC 563], wherein, the Supreme Court has considered the correctness of an order, refusing to grant, permission for alienation, required to be obtained by a Scheduled Tribe to a Non-Scheduled Tribe, has also been extracted in R.Chandevarappa's case and the same is reproduced hereunder:
"right to development is an inalienable human right by virtue of which every human person is entitled to participate in contribution to, and to enjoy economic, social, cultural and political development, in which all human rights and fundamental freedoms can be fully realised. All human rights derive from dignity and worth in man. Democracy blossoms the person's full freedom to achieve excellence. The socio-economic content in directive principles is all pervasive to make the right to life meaningful to the Indian citizens. For national unity, equality of status and dignity of persons envisaged in the Constitution, social and economic reforms in a democracy are necessary. Welfare is a form of liberty inasmuch as it liberates men from social conditions which narrow their choices and brighten their self development. Article 46 of the Constitution mandates the State to promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation. Political democracy must be made a social democracy as a way of life."
47. In Muralidhar Dayandeo Kesekar's case (stated supra), it was further held as it was further held as follows:
"the State is enjoined to provide adequate means of livelihood to the poor, weaker sections of the society, the dalits and tribes and to distribute material resources of the community to them for common welfare etc. Therefore, civil, political, social, economic and cultural rights are necessary to the individual to protect and preserve human dignity, social and economic rights are sine quanon concomitant to assimilate the poor, the depressed and deprived, i.e., the dalits and tribes in the national main stream for ultimate equitable society and democratic way of life to create unity, fraternity among people in an integrated Bharat. Property is a legal institution the essence of which is the creation and protection of certain private rights in wealth of any kind. Liberty, independence, self-respect, have their roots in property. To denigrate the institution of property is to shut one's eyes to the stark reality evidenced by the innate instinct and the steady object of pursuit of the vast majority of people. The economic rights provide man with freedom from fear and freedom from want, and that they are as important if not more, in the scale of values. The effect of social and economic legislation was held thus: "In fact, the cumulative effect of social and economic legislation is to specify the basic structure. Moreover, the social system shapes the wants and aspirations that its citizens come to have. It determines in part the sort of persons they want to be as well as the sort of persons they are. Thus an economic system is not only an institutional device for satisfying existing wants and needs but a way of creating and fashioning wants in the future. The economic empowerment, therefore, to the poor, dalits and tribes as an integral constitutional scheme of socio-economic democracy is a way of life of political democracy. Economic empowerment is, therefore, a basic human right and a fundamental right as part of right to live, equality and of status and dignity to the poor, weaker sections, dalits and tribes." The Prohibition from alienation is to effectuate the constitutional policy of economic empowerment under Articles 14, 21, 38, 39 and 46 read with the Preamble of the Constitution. Accordingly it was held that refusal to permit alienation is to effectuate the constitutional policy. The alienation was declared to be void under section 23 of the Contract Act being violative of the constitutional scheme of economic empowerment to accord equality of status, dignity of persons and economic empowerment."
48. Similar to the conditions of grant in the present writ petition, in R.Chandevarappa's case (cited supra), there was also a condition, empowering the assignee to encumber the land to secure loan to improve the assigned lands either from the Government or from the Cooperative Society for bona fide purposes of improving the land or for buying cattle or agricultural implements for better cultivation of the land. While considering the limited right granted under the Act, at Paragraph 9, the Supreme Court held as follows:
"That would clearly indicate the object of assignment, namely, the assignee should remain in possession and cultivate the land personally from generation to generation to augment economic status so as to secure economic justice envisaged under the Preamble of the Constitution and the Directive Principles."
49. On the question, as to whether alienation is valid in law, the Supreme Court, at Paragraph 10, held as follows:
"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 W.A. No.807 of 1987 titled Smt. Ammanamma v. Venkataiah & Ors. 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."
50. On the plea raised regarding adverse possession, at Paragraph 11, the Supreme Court held as follows:
"Admittedly the appellant came into possession by a derivative title from the original grantee. It is seen that the original grantee has no right to alienate the land. Therefore, having come into possession under colour of title from original grantee, if the appellant intends to plead adverse possession as against the State, he must disclaim his title and plead his hostile claim to the knowledge of the State and that the State had not taken any action thereon within the prescribed period. Thereby, the appellant's possession would become adverse. No such stand was taken nor evidence has been adduced in this behalf."
51. In O.Dyamappa Vs. Apanna Bhovi and others reported in 1997 (3) Kar L.J. 683, land was granted under Darkast in favour of one Dasa Bhovi, father of Appanna Bhovi. The grant stiplulated 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. One Smt.Arundi Thimmakka had taken certain lands 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 made an application for grant of occupancy rights in her favour. The Land Tribunal passed an order, granting occupancy rights under the Karnataka Land Reforms Act. She was in possession and enjoyment of the property. In the meanwhile, the legal heir of Dasa Bhovi (original allottee) filed an application to initiate action under the provisions of the karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978, to enable the state and hand over it to the original grantee or his legal heirs. The tenant resisted the same. After hearing all the parties, the Assistant Commissioner declared that the alienation was within the prohibitory period by the original grantee and therefore, it was declared as void. He further directed restoration of the land in favour of the legal heir. The tenant preferred preferred an appeal unsuccessfully. Being aggrieved by the orders made by the original and appellate authorities, a writ petition was filed and that the same was dismissed, holding that the provisions of the karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978, overrides 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. After considering the decisions in R.Chandevarappa and others, reported in 1983 (1) KLT 478, and Manchegowda Vs. State of Karnataka, reported in 1984 (3) SCC 301, at paragraph 19, the Court held as follows:-
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.
52. In Lao-cum-Revenue Divisional Vs. Mekala Pandu, reported in AIR 2004 AP 250, a Constitutional Bench comprising of Seven Judges considered a question as to whether the claimants therein are entitled to payment of compensation under the provisions of the Land Acquisition Act, 1984, when assigned lands were resumed by the Government for a public purpose. The Constitutional Bench, after considering the statutory provisions of the Andhra Pradesh Assigned Lands (Prohibition on Transfers) Act, 1977, at paragraphs 19 to 23, discussed and summarised the arguments of the Learned Advocate General, and at paragraphs 26 to 28, the Court observed as follows:-
26. The land reforms legislations have been enacted by the State in discharge of its obligation under Article 39(b) and (c) of the Constitution of India, which inter alia commands the State that it 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; and that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment.
27. Likewise, Article 41 of the Constitution of India commands the State that it shall, within the limits of its economic capacity and development, make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of underserved want.
28. The assignment policy itself is the result of unending struggle over allocation of collective resources. It was the egalitarian promise of a welfare State sought to do away with the vestiges of feudalism and unequal social order. Allocation of collective resources to the weaker sections of the society is an aspect of distributive justice. Social justice is the signature tune of the Indian Constitution. The struggle for freedom has been not only political but also economic and social.
53. About the distribution of lands to the landless poor, the Constitutional Bench at paragraphs 34 to 38, observed as follows:-
34. The task of distribution branch is to preserve an approximate justice in distributive shares by means of taxation and the necessary adjustments in the rights of property. It imposes and sets restrictions on the property rights with a view to gradually and continually to correct the distribution of wealth and to prevent concentrations of power detrimental to the fair value of political liberty and fair equality of opportunity.
35. It is an economic arrangement based on social choice devised with a view to advance the good of the body politic as a whole by invoking some discernable criterion for the just division of social advantages.
36. The policy of the State Government as is evident from the provisions of the statutes referred to hereinabove and various Governmental Orders issued from time to time relating to the assignment of Government lands in favour of weaker and vulnerable sections of the society is obviously to empower them and to secure the larger interest of the community. They are designed to bring about the social and economic revolution that remained to be fulfilled.
37. The policy to assign the Government land is to prevent perpetuation of injustice and feudal order and to prevent concentration of material resources of the community in the hands of chosen few. The assignment of the Government land to the weaker sections of the society is in furtherance of the constitutional obligation imposed upon the State to secure the citizens an adequate means of livelihood. More than 50 per cent of the populatry in India lives in villages and below poverty line. The average agricultural holding of a farmer is hardly enough to sustain himself and his large family. The landless labourers who constitute the bulk of village population are deeply mired in poverty. The State in discharge of its obligation to take positive action for creating socio-economic conditions in which there will be an egalitarian social order with social and economic justice to all, tailored its policies and accordingly provided public assistance to the weaker and vulnerable sections of the society by assigning the lands for cultivation purpose as well as for house sites to have a roof over the head. It is not a charity, but means to provide general welfare to secure the Blessings of Liberty to one and all. The cornerstone of the land reforms policy is the acceptance of the principle that land must belong to the tiller and exploitation of all sorts must be eliminated.
38. The assignment of lands in favour of vulnerable sections of the society was made for the purpose of securing to such sections of the society a life of basic human dignity and in compliance with the directive principles of the State policy. It must follow as a necessary corollary that the assignees acquire the status of constitutional claimants.
54. On the restriction imposed in alienation, the Constitutional Bench of the Andhra Pradesh High Court at paragraphs 47 and 48 held as follows:-
47. We have already noticed that the rights in land granted under patta are heritable. That assignee is entitled to be in perpetual possession and enjoyment of the assigned land and such rights devolve upon the legal descendents of the assignee. The possession of the land forever continues to be with the assignee and after his death with his legal heirs. The restriction on the right to alienate obviously has been imposed with the hope that the family of assignee will improve the land and enjoy the benefits arising therefrom. The restriction is imposed in the nature of protection in order to secure the perpetual enjoyment of the land for the benefit of the family of the assignee. The restriction has been imposed in order to prevent alienation of the lands assigned in favour of well to do persons. The legislature having considered that a protective legislation is necessary so as to prescribe the punishment to persons who have purchased such lands made suitable provisions in various enactments referred to hereinabove against the transfers and alienations of assigned lands.
48. The object of the legislation is not to deprive the assignees their right, title and interest in the land. The provisions and the conditions in the pattas were not incorporated to deprive the legitimate ownership rights of the assignees. On the other hand, such provisions were enacted to protect the ownership of the assignees. The legislation is for the benefit of weaker sections of the society, who by themselves are not in a position to hold their property to themselves in the absence of protection. Such alienations by the assignees are not only declared to be null and void, but a further provision also has been incorporated to restore the assigned land to the original assignee or to his legal heir provided that such restoration shall not be more than once.
55. The Constitutional Bench also considered the judgments in Manchegowda Vs. State of Karnataka reported in AIR 1984 SC 1151 and Lingappa Pochanna v. State of Maharashtra, wherein, in the latter case, the Supreme Court considered the constitutional validity of the provisions of Maharashtra Restoration of Lands to Scheduled Tribes Act, 1974, a law relating to transfers and alienations of agricultural lands by members of Scheduled Tribes in the State, to persons not belonging to Scheduled Tribes and restoration of possession thereto to the Scheduled Castes and Scheduled Tribes, and the Constitutional Bench observed thus:
"The present legislation is a typical illustration of the concept of distributive justice, as modern jurisprudence knows it.......Our Constitution permits and even directs the State to administer what may be termed 'distributive justice'. The concept of distributive justice in the sphere of law-making connotes, inter alia, the removal of economic inequalities and rectifying the injustice resulting from dealings or transactions between unequals in society....... Distributive justice comprehends more than achieving lessening of inequalities by differential taxation, giving debt relief or distribution of property owned by one to many who have none by imposing ceiling on holdings, both agricultural and urban, or by direct regulation of contractual transactions by forbidding certain transactions and, perhaps, by requiring others. It also means that those who have been deprived of their properties by unconscionable bargains should be restored their property....... It is axiomatic that a contract is liable to be set aside due to inequality of bargaining power, if someone without independent advice, enters into a contract on terms which are very unfair or transfers property for a consideration which is grossly inadequate when his bargaining power is grievously impaired by reason of his own need or circumstances, or by his own ignorance or infirmity, coupled with undue influence or pressures brought to bear on him by or for the benefit of the other." (Emphasis is added)
56. Reverting back to the Andhra Pradesh Assigned Lands (Prohibition on Transfers) Act, 1977, at paragraph 52, the Constitutional Bench held as follows:-
"52. This is exactly the purpose and intendment sought to be achieved by the A.P. Assigned Lands (Prohibition of Transfers) Act, 1977 (Act 9 of 1977). The various conditions imposed in the patta prohibiting transfers and alienations of assigned lands by the landless poor persons are required to be understood and appreciated in that background. The main object is to declare such alienations void and restore the assigned lands to the assignees. Neither the statutory provisions nor the conditions imposed restricting the alienations were intended to restrict the ownership rights of the assignees. Such restriction, in our considered opinion, cannot be construed as a clog on the right, title and interest of the assignee in the assigned land.
57. On the aspect of the Government assigning lands to the weaker sections of the society, the Constitutional Bench, at paragraph 87 extracted the judgment in Jilubhai Nanbhai Khachar vs. State of Gujrat, reported in 1995 Supp (1) SCC 596, which is as follows:-
87. In Jilubhai Nanbhai Khachar v. State of Gujarat, 1995 Supp. (1) SCC 596, the Supreme Court observed:
"Those without land suffer not only from an economic disadvantage, but also a concomitant social disadvantage. In the very nature of things, it is not possible to provide land to all landless persons but that cannot furnish an alibi for not undertaking at all a programme for the redistribution of agricultural land. Agrarian reforms therefore require, inter alia, the reduction of the larger holdings and distribution of the excess land according to social and economic consideration. We embarked upon a constitutional era holding forth the promise that we will secure to all citizens justice, social, economic and political, equality of status and of opportunity; and, last but not the least, dignity of the individual.......Indeed, if there is one place in an agriculture dominated society like ours where citizens can hope to have equal justice, it is on the strip of land which they till and love, the land which assures to them dignity of their person by providing to them a near decent means of livelihood."
It is further held:
"Property, therefore, accords status. Due to its lack man suffers from economic disadvantages and disabilities to gain social and economic inequality leading to his servitude. Providing facilities and opportunities to hold property furthers the basic structure of egalitarian social order guaranteeing economic and social equality. In other words, it removes disabilities and inequalities, accords status, social and economic and dignity of person........Property in a comprehensive term is an essential guarantee to lead full life with human dignity, for, in order that a man may be able to develop himself in a human fashion with full blossom, he needs a certain freedom and a certain security. The economic and social justice, equality of status and dignity of person are assured to him only through properly." (Emphasis is supplied).
58. In Harishchandra Hegde Vs. State of Karnataka, reported in 2004 (1) CTC 709, on 1.5.1961, two acres of land in Survey No. 134/110 were granted by the Government of Karnataka, in favour of one Smt. Gangamma. The appellant purchased the said land from her, through a registered sale deed for valuable consideration on 13.9.1.962 and allegedly invested a lot of money for improvements thereof. The Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978, came into force w.e.f. 1.1.1979. By reason of Section 4 of the Act, all the alienations made in contravention of the terms of Grant were declared as void, and all such lands were to be resumed and restored to the original grantee, in terms of Section 5 of the Act. On 11.9.1986, the original grantee made an application for initiation of a proceeding under Section 4 of the Act. In pursuance whereof, proceeding was initiated against the appellant on 29.05.1987. An order of restoration of the land in favour of the original grantee was made by the Assistant Commissioner. The purchaser preferred an appeal before the Deputy Commissioner. On 25.3.1989, the appeal was dismissed. The appellant, thereafter filed a writ petition, in W.P.No.23216 of 1990, for a declaration that any order passed by the Assistant Commissioner, under Section 5 of the Act for restoration of land would be subject to the right of the transferee, to claim the value of the improvements, as prescribed under Section 51 of the Transfer of Property Act. The said writ petition was dismissed by a learned Single Judge. The writ appeal filed by the appellant was also dismissed, by reason of an order dated 16.2.1996. Being aggrieved by the decision of the High Court, the purchaser moved an appeal before the Supreme Court, contending inter alia that having regard to the fact that the appellant therein had purchased the land, as far back as on 3.09.1962, he is entitled to the benefit of Section 51 of the Transfer of Property Act.
59. Referring to the provisions Sections 4 and 5 of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978, and considering the decision in Manchegowda Vs. State of Karnataka, reported in AIR 1984 SC 1151, and Section 51 of the Transfer of Property Act, at paragraphs 13 and 17, the Supreme Court in Harishchandra Hegde's case held as follows:-
13. By reason of an order passed under Section 4 of the Act, the lands are directed to be restored in the event the illegalities specified therein are discovered. The consequences contained in Section 5 of the Act applies automatically in the event an order under Section 4 of the Act is passed. Section 4 of the Act contains a non obstante clause, The said provision would, thus, apply notwithstanding anything contained in any agreement or any other Act for the time being in force. The Act is a special Act whereas the Transfer of Properly Act is a general Act and in that view of the matter also Section 51 of the Transfer of Property Act will have no application and the consequences contained in Section 5 would prevail.
17. Section 51 of the Transfer of Property Act applies to inter vivos transfers. It, as noticed hereinbefore, does not apply to a transfer made by operation of law. If a judicial order is passed restoring the land back to a member of Scheduled Tribes in terms of the purport and object of the statute, the provisions of the Transfer of Property Act cannot be applied in such a case. The matter is governed by a special statute. Unless there exists a provision therein, an order passed thereunder cannot be supplanted or supplemented with reference to another statute.
60. On the question as to whether the transferee has a right to challenge the restriction of alienation, the Supreme Court, considered a case in Guntaiah v. Hambamma reported in 2005 (6) SCC 228, under the Mysore Land Revenue (Amendment Rules), 1960 [hereinafter being referred to as "Rules of 1960"]. Certain lands were granted to members of Scheduled Castes and Scheduled Tribes. Initially, these lands were given to them on temporary lease and later by virtue of Rule 43-J of Rules of 1960, these lands were given to them permanently with a restriction that the grantees shall not alienate these lands for a period of 15 years to third parties. These lands were granted to them during the period 1959-65. The Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands), Act, 1978 [Act 2 of 1979] came into force on 1.1.1979. Section 4 of this Act is to the effect that any transfer of granted land made either before or after the commencement of the Act, in contravention of the terms of the grant of such land or the law providing for such grant, shall be null and void and no right, title or interest on such land shall be conveyed nor be deemed ever to have conveyed by such transfer. The persons who obtained grant of Government land, contrary to the condition regarding alienation, transferred the properties to third parties. In some cases, even the transferees had effected further transfer of such lands to others. Section 5 of Act 2 of 1979 conferred power on the Assistant Commissioner to pass appropriate orders for restoration of the land to the original allottee in case any transfer was effected contrary to Section 4 of the Act. Section 5 of Act 2 of 1979 provided that an Assistant Commissioner, on application by any interested persons or on information given in writing by any person, or suo-motu, after such inquiry, if he was satisfied that the transfer of any granted land is null and void, as provided under sub-Section (1) of Section 4, may by order, take possession of such land after giving a reasonable opportunity of being heard to the person evicted, and restore the land to the original allottee. An appeal also is provided against the order passed by the Assistant Commissioner. Section 11 of Act 2 of 1979 further stated that Act 2 of 1979 shall have overriding effect over the other laws.
61. In the above reported case, the original allottees who were either scheduled castes or scheduled tribes transferred the property to third parties without obtaining previous permission of the Government. Later, the original allottees or their successors-in-interest filed applications before the Assistant Commissioner praying for restoration of lands which were transferred contrary to Section 4 of Act 2 of 1979. The Assistant Commissioner after conducting inquiry in these cases held that all the transfers were null and void and directed restoration of possession to the original grantees. The affected parties filed appeals and those appeals were dismissed by the appellate authority. Those orders were challenged before the High Court and a learned Single Judge confirmed the orders passed by the appellate authority. Aggrieved by the Judgment of the learned Single Judge, Writ Appeals were filed. An argument was advanced on behalf of the transferees of such lands, that the lands in all these cases were granted under Rule 43-J of Rules of 1960 and as it is not specifically provided for under Rule 43-J that there shall be any restriction on alienation, the restriction imposed was not valid or enforceable. The Division Bench of the High Court thought it fit to refer the matter to a Full Bench as certain conflicting opinions were expressed by different Benches of the same High Court. The relevant portion of the reference order is to the following effect:-
"One of the important questions that arises for consideration in these Writ Appeals is as to whether an Authority granting land under Rule 43-J of Mysore Land Revenue (Amendment) Rules, 1960 can impose any condition at the time of making grant that the grantee, shall not alienate the land for a period of 15 years when Rule 43-J do not provide for any such condition. A further question also arisesp on the effect of a condition imposed in the Saguvali chit by the Tahsildar that the grantee shall not alienate the land for a period of 15 years when such condition was not imposed by the order of the Authority making the grant."
62. The Full Bench held that in all these cases the lands were allotted under Rule 43-J and, therefore, there should not have been any condition restricting the alienation by the grantees. The Full Bench also held that the conditions stipulated in Rule 43-G were not applicable to the grants made under Rule 43-J and, therefore, the conditions imposed by the Tahsildar in the 'Saguvali chit' restricting the alienation of such lands by the grantee was not sustainable in law. Aggrieved by the said decision, the State as well as the affected parties filed appeals to the Apex Court.
63. It is worthwhile to reproduce Section 43-G of the abovesaid Act, as extracted in Guntaiah's case, is as follows:-
43-G Grant of lands under the preceding rules shall be subject to the following conditions. (1) In the case of grant of lands to applicants belonging to the Scheduled Castes and Scheduled Tribes, and to other applicants, who are unable to pay the occupancy price on account of poverty, the occupancy price may be waived up to rupees two hundred and the balance recovered in three annual instalments.
(2) In the case of grant of land to applicants who are ex- servicemen the occupancy price shall be waived up to the extent awarded by Government under the Military Concession Rules.
(3) In the case of grant of land free of occupancy price, the grant shall be subject to the condition that the grantee shall pay contribution or betterment levy in respect of the land and the value of trees standing of the land.
(4) Where the grant is made free of cost, or is made at a price which is less than the full market value, the grant shall be subject to the condition that the land shall not be alienated for a period of fifteen years from the date of the grantee taking possession of the land, after the grant:
Provided that such land may be alienated with the previous sanction of the Government and subject to such conditions as the Government may specify, if the Government is of the opinion that in the circumstances of any case, it is just and reasonable to permit such alienation either for purposes of acquiring some other land or for any other purpose:
Provided further that nothing in this clause shall apply to:
(a) the alienation of any land in favour of the State Government or Co-operative Society as security for loans obtained for improvement of the land or for buying cattle or agricultural implements for the cultivation of the land, or alienation of any land in favour of the Indian Coffee Board as security for loans advanced by the Indian Coffee Board under the Coffee Development Plan;
(b) the leasing of any land by a person who is a widow, a minor or who is subject to physical or mental disability or who is a serving member of the armed forces.
(5) The grantee shall cultivate the land personally.
(6) The land shall be brought under cultivation within two years from the date of the grantee taking possession of the land.
(7) The grant is liable to be terminated by the Divisional Commissioner or the State Government and the land resumed if any of the aforesaid conditions is not fulfilled, and on such resumption the land shall vest in Government free from all encumbrances:
Provided that no land shall be resumed under this clause except after giving an opportunity to the grantee or his successor in interest to show cause why the grant should not be terminated and the land resumed."
64. After careful consideration of the entire scheme and the abovesaid rules, the Supreme Court, at Paragraphs 9, 12, 13 and 14, held as follows:
9. A careful scrutiny of the entire scheme of the rules relating to grant of lease to landless persons would show that the finding of the Full Bench on this issue is legally not sustainable. First of all, Rule 43-J is only a general rule which says that the lands which have been given on lease for agricultural purposes could be assigned to the lessees if they complied with the conditions of lease. The title to the land primarily vests with the Government. The Government while granting title to the lessees, can impose any conditions which are permissible under law. The land is being given to lessees either free of cost or at a price which is less than the full market price. It is not an outright sale made by the Government for full consideration. In all these cases, lands were given almost free of cost. The upset price of the land was either fixed at Rs. 200-250 per acre and this Rs. 200 itself was waived and the grantee was to remit only Rs. 50 per acre. Grantee was to execute "Saguvali Chit" and it incorporated a condition prohibiting alienation for a period of 15 years. The history of the legislation also would show that the State of Karnataka has all along been giving lands to the landless persons belonging to Scheduled Castes and Scheduled Tribes subject to the restriction on alienation of such land.
.............
12. When the rule itself says that where the grant is made free of cost or at a price which is less than the full market value, such grant shall be subject to the condition that the land shall not be alienated for a period of 15 years from the date of the grantee taking possession of the land after the grant, such conditions could be imposed on any grant made to the party.
13. In any case, the High Court failed to take into account the clear language employed in Section 4, according to which 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' shall be null and void(emphasis supplied). The violation of the terms of grant itself gives rise to the action under Section 4 read with Section 5. So long as the terms of the grant prohibiting transfer are not opposed to any specific provision of law, they cannot be violated and the transferee gets no rights by virtue of such invalid transfer. That is the sum and substance of Section 4 which has not been duly considered by the High Court.
14. It is also pertinent to note that the prohibition regarding alienation is a restrictive covenant binding on the grantee. The grantee is not challenging that condition. In all these proceedings, challenge is made by the third party who purchased the land from the grantee. The third party is not entitled to say that the conditions imposed by the grantor to the grantee were void. As far as the contract of sale is concerned, it was entered into between the Government and the grantee and at that time the third party purchaser had no interest in such transaction. Of course, he would be entitled to challenge the violation of any statutory provisions but if the grant by itself specifically says that there shall not be any alienation by the grantee for a period of 15 years, that is binding on the grantee so long as he does not challenge that clause, more so when he purchased the land, inspite of being aware of the condition. The Full Bench seriously erred in holding that the land was granted under Rule 43-J and that the authorities were not empowered to impose any conditions regarding alienation without adverting to Section 4 of the Act 2 of 1979. These lands were given to landless persons almost free of cost and it was done as a social welfare measure to improve the conditions of poor landless persons. When these lands were purchased by third parties taking advantage of illiteracy and poverty of the grantees, Act 2 of 1979 was passed with a view to retrieve these lands from the third party purchasers.
65. Ultimately, the Supreme Court, at Paragraph 15, by observing that the findings of the Full Bench was contrary to law, set aside the same and upheld the judgment of the learned Single Judge. One of the ratios decidenti of the judgment of the Supreme Court is that when the grantee had not come forward to challenge the condition, regarding alienation, the third party is not entitled to say that the conditions imposed by the grantor to the grantee are void.
66. In B.K.Muniraju Vs. State of Karnataka and Others, reported in 2008-1-L.W.910, the Supreme Court considered a case, as to whether, alienation after the expiry period of ten years of non-alienation clause, would attract the provisions of Section 4(1) of the karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978, and at paragraph 10, the Apex Court, after considering the statement of objects and reasons of the Act, and finding that the alienation was contrary to the provisions of the Act, held that the finding recorded by the authorities and confirmed by the writ court, cannot be interfered with. Paragraphs 9 and 10 of the judgements are extracted hereunder:-
9) The Statement of Objects and Reasons of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 shows that the non-alienation clause contained in the existing Land Grant Rules and the provisions for cancellation of grants where the land is alienated in contravention of the above said provision are found not sufficient to help the Scheduled Castes and Scheduled Tribes grantees whose ignorance and poverty have been exploited by persons belonging to the affluent and powerful sections to obtain sales or mortgages either for a nominal consideration or for no consideration at all and they have become the victims of circumstances. To fulfill the purposes of the grant, the land even if it has been alienated, should be restored to the original grantee or his heirs. It is clear that in order to provide for the prohibition of transfer of certain lands granted by Government to persons belonging to the Scheduled Castes and Scheduled Tribes in the State of Karnataka, the above said Act was enacted. In order to implement the provisions of the Act, the Rules were framed. Among the provisions, we are concerned with Section 4 which prohibits transfer of "granted land". It makes it clear that notwithstanding anything in any law, agreement, contract on instrument, any transfer of granted land made either before or after the commencement of the 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 or be deemed ever to have conveyed by such transfer. Sub-section (2) makes it clear that no person shall, after the commencement of the Act, transfer or acquire by transfer any granted land without the previous permission of the Government. As per sub-section (3), the provisions of sub-sections (1) and (2) also apply 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.
10) Among the Rules, Rule 43 is relevant which speaks about the grant of occupancies. Sub-rule(1) of Rule 43 mandates that all the lands shall ordinarily be sold by public auction. Sub-rule (5) mandates Grant of occupancies to members of depressed classes. Sub-Rule (8) makes it clear that lands granted free or at upset price shall not be alienated but may be accepted as security for loans. The note appended to the above provisions makes it clear that depressed classes occurring in these rules will have to be constructed as equivalent to the words "Scheduled Caste and Scheduled Tribes" occurring in the Constitution of India.
67. In Bhadrappa v. Tolacha Naik reported in 2008 (2) SCC 104, in the year 1995, the land in question was granted in favour of one Gopya Naik. Saguvali Chit was issued on 11.10.1956. Seetamma, widow of the grantee, sold the land in the year 1959, in favour of one Gangappa, who in turn, sold the said land to one Ahmad Pasha and there was a subsequent sale by Ahmad Pasha to one Bhadrappa. The land in question Survey No.106 was to the extent of 3 acres and 5 guntas. Proceedings were initiated on the basis of an application that the alienation was hit by Section 4 of Karnataka Scheduled Castes and Schedules Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 (in short the Act). After considering the provisions, Sections 4 and 5 of the Act, an order was passed in the proceeding under Section 5 of the Act to the effect that the alienation was effected within the period of prohibition. The appellant took a stand that the land was not a free grant land. It was a grant for upset price. The authorities under the Act concluded that it was a free grant. The writ Court has dismissed the petition and the Bench confirmed the same. Following the decisions made in Manchegowda v. State of Karnataka reported in 1984 (3) SCC 301 and Guntaiah v. Hambamma reported in 2005 (6) SCC 228, at Paragraph 8, in Bhadrappa's case (cited supra), the Apex Court held as follows:
Section 5(3) of the Act clearly provides that any person other than the grantee or his legal heirs in possession of the granted land, shall be deemed to be in possession under a transfer which is null and void under Sections 4(1) and 4(2) until and unless anything contrary is established. Burden, therefore, is on the person in possession to prove that his possession was valid in accordance with law. It was found factually that the writ petitioner had failed to establish the same. The transfer in favour of Gangappa was in violation of the prohibition of the Act.
68. In D.N.Venkatarayappa and another Vs. State of Karnataka, reiterating the views expressed in Chandevarappa's case, the Supreme Court held as follows:-
The law laid down by the Supreme Court in Chandevarappa's case (supra) fully applies to the facts of the present case. In the said case, while considering the claim of adverse possession the purchaser of a granted land from the original grantee, the Supreme Court has observed that the person, who comes into possession under colour of title from the original grantee if he intends to claim adverse possession as against State, must disclaim his title and plead his hostile claim to the knowledge of the State and the State had not taken any action thereon within the prescribed period. It is also relevant to point out that sub- section (3) of Section 5 of the Act provides that where a granted land is in possession of a person, other than the original grantee of 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. Since I have negativated the contention of Sri Narayana Rao that the original grantees are not Scheduled Castes, it follows that the lands in question are granted lands within the meaning of clause (b) of sub- section (1) of Section 3 of the Act. Therefore, the burden is on the petitioners, who had admittedly come into possession of the lands in question, to establish that they have acquired title to the lands in question by a transfer, which is not null and void under the provisions of sub-section (21) of Section 4 of the Act. In the instant case, the petitioners have failed to discharge the said burden. On this ground also, the petition should fail. Secondly, the grants made in favour of the original grantees are admittedly free grants. The Rule governing the grant prohibited alienation of the lands in question permanently. The lands in question were granted to Scheduled Caste person taking into account their social backgrounds, poverty, illiteracy and their inherent weakness from being exploited by the affluent section of the society. Under these circumstances, the conditions were imposed that the grantees should not alienate the lands granted to them, Sections 66A and 66B of the Land Revenue Code authorise the State of resume the land for violation of the terms of the grant. Therefore, if the terms of the grants, which are hedged with conditions, and the class of persons to whom the lands are granted, are taken into account and considered, it is not possible to accept the contention of the learned Counsel for the petitioners that the title in the lands had passed absolutely to the grantees. I am of the view that the title to the lands continued to remain in the State and what has been transferred tot he grantees is the right to continue to be in possession of the lands granted to them and enjoy the same in perpetuity subject to the condition that they do not violate the conditions of the grant. This view of mine is supported by the Division Bench decision of this Court in the case of Rudrappa vs. Special Deputy Commissioner (Writ Appeal No. 1210/1987 decided on 17.6.1996), wherein in Paragraph-3 of the judgment, the Division Bench of this Court, while considering similar grants, has taken the view that the grantee was not given absolute title in respect of the land granted. The relevant portion of the judgment at Paragraph-8, reads as follows:
"8. ...It is clear from the terms of the grant that the appellant's predecessor in title, the grantee could not alienate the land for certain period and if the land was alienated, it was open to the Government to cancel the grant and resume the land in question. If the grant was hedged in with several conditions of this nature, the same cannot be said to be absolute moreover, it must be noticed that the grant was made at an upset price. In the circumstances, proceedings initiated by the respondents cannot be stated to be barred by limitation or is it possible to sustain the plea of adverse possession raised on behalf of the appellant."
In the same judgment, the Supreme Court further held that, Here, in the present case, when alienation is altogether prohibited, question of obtaining permission for alienation is not at all contemplated. When under the law alienation cannot be effected at all during the relevant period, it was impossible for the alienor to alienate the same. Thus the alienee will not derive any title. If at all be holds the land, he holds the same adverse to the alienor and not with reference to the State. That was the position considered by the Supreme Court in Chandeveerappa's case as well as in Civil Appeal No. 11933/1996 - Papaiah vs. State of Karnataka & Others. The Supreme Court in Papaiah's case noticed the scope of the enactment and found that the same has been enacted in terms of the preamble of the Constitution to provide economic justice to the Scheduled Castes/Scheduled Tribes and other weaker sections of the society and to prevent their exploitation in terms of Articles 46 of the Constitution. It is also noticed that under Article 39(b) of the Constitution, the State is enjoined to distribute its largesse - in the present case the land - to sub-serve the public good. The assignment of land having been made in furtherance of this objective, any alienation in its contravention would not only be in violation of a Constitutional Policy but also opposed to public policy under Section 23 of the Contract Act. Therefore, the Supreme Court pointed out that any alienation made in violation of the terms of grant is void an the alieness do not get any valid title or interest thereunder.
69. In K.Sadayandi and others Vs. The District Collector, Kancheepuram and others, (W.P.No.19532 and 21155 of 2009, dated 14.07.2011), the writ petitioners challenged the order of the Revenue Divisional Officer, Chengalpattu. By impugned order therein, the said authority found that the lands originally given to the families in terms of the Revenue Standing Order No.15/3 was cancelled, and it was directed to be recorded in the village accounts as Gramanatham, Pramboke. The assignees contended that they have obtained electricity, water supply and also paid property tax. For obtaining patta, they sought for the help of one Duraisingam. According to them, he received money for meeting out the expenses. It was the further case of the petitioners that the said Duraisingam misrepresented about the contents of the document and executed a document viz., Power of Attorney. The said Power of Attorney, misused the same and sold the plots to some third parties. They realised the same only when they received a show cause notice from the revenue department, for cancellation of assignment. As the power of attorney has been obtained by fraud and misrepresentation, they submitted a representation to the 1st respondent therein. Subsequently, they filed a suit before the Learned District Munsif Court, Alandur, to declare that the sale deed executed by the said Duraisingam as null and void. The suit was stated to be pending on the date of filing of the writ petition. Opposing the writ petition, the District Revenue Officer, Chengalpattu, in his counter affidavit, has contended that house sites were given to the petitioners with a condition that they should pay the land value; under Condition No.2, it was also stated that the petitioners should put up a hut within six months or a tiled house within 12 months 65; and as per Condition No.9, the land should not be alienated, sold, mortgaged, or leased out to anybody within a period of ten years from the date of issuance of assignment. The said authority has further submitted that as per Revenue Standing Order No.15/3 and instructions of the Government in their letter dated 15.07.1997, assignment is liable to be cancelled, if the petitioners violate the conditions of assignment that they should not alienate the land within 10 years from the date of assignment. It was also contended that the petitioners therein had not put up any hut or tiled house either before or after the date of assignment and that the lands were vacant. It was also contended that the petitioners were also allotted group houses in Injambakkam village by the Government and that therefore their contention that they had no other means to reside was incorrect. The purchasers of the assigned land also filed a writ petition in W.P.No.21555 of 2009 and submitted that the assignees approached Duraisingam and gave a Power of Attorney in his favour, as they were in dire need of money and that were facing financial difficulties. The said Duraisingam had also applied to the Revenue Divisional Officer and obtained a No Objection Certificate for sale of the properties. The Tahsildar had certified that all the allottees had paid their entire land cost and that there was no objection for them to obtain loan or to transfer property on the basis of patta which was granted in their favour. Therefore, it was submitted that the properties allotted to the fishermen were sold for valuable consideration and that the purchasers were also put in possession. It was further contended on behalf of the purchasers that no notice of cancellation of allotment was given to them and that therefore, there was violation of principles of natural justice. As the petitioners/assignees had not stated anything about the sale deed executed on their behalf by the power of attorney holder and the receipt of sale consideration, this Court came to the conclusion that the assignees had suppressed the said vital information. This Court also found that the sale was also effected within 7 years, violating the conditions of assignment and the further condition that the assignees should put hut or tiled house was also not complied with. This Court also found that in response to a show cause notice for cancellation, there was no explanation. The assignee did not submit any valid explanation. They also deliberately not impleaded the said Duraisingam, as well as the subsequent purchasers in the writ petition. On the abovesaid grounds, the writ petition filed by the assignees was dismissed.
70. On the aspect as to whether the purchasers can assail the cancellation of assignment for violation of the conditions of assignment, by the assignees, Hon'ble Mr.Justice.K.Chandru, placing reliance on the judgment of the Supreme Court in Guntaiah Vs. Hambamma (cited supra) and after considering the condition banning alienation, as explained by the Supreme Court in Manchegowda Vs. State of Karnataka, reported in 1984 (3) SCC 301, approved in Chinde Gowda vs. Puttamma, reported in 2008 AIR SCW 268 = 2007 (12) SCC 618 and relying on the judgment in State of U.P. Vs. Zahoor Ahmed, reported in 1973 (2) SCC 547, wherein, the Supreme Court considered as to whether such condition of assignment was valid and whether the condition contravened the Transfer of Property Act, and also taking note of the legal proposition in Papaiah v. State of Karnataka, reported in 1996 (10) SCC 533 and Sisili Ammal v. Sundararaja Naidu, reported in AIR 1946 Madras 52, dismissed the writ petition filed by the purchasers also.
71. Paragraph 16 the judgment in State of U.P. Vs. Zahoor Ahmed, reported in 1973 (2) SCC 547, considered in K.Sadayandi's case, with reproduction and it is as follows:
Section 3 of the Government Grants Act declares the unfettered discretion of the Government to impose such conditions and limitations as it thinks fit, no matter what the general law of the land be. The meaning of Sections 2 and 3 of the Government Grants Act is that the scope of that Act is not limited to affecting the provisions of the Transfer of Property Act only. The Government has unfettered discretion to impose any conditions, limitations, or restrictions in its grants, and the rights, privileges and obligations of the grantee would be regulated according to the terms of the grant, notwithstanding any provisions of any statutory or common law.
72. In VGP Prem Nagar v. The State of Tamil Nadu reported in 2010 (3) CTC 845, the history of assignment of lands to the depressed classes is given in nutshell and that the same is extracted hereunder:
"The history of the assignment of lands to depressed classes is important. In 1891, the then Chengalpet District Collector J.H.A.Tremen Heere, a Britisher, submitted a report to the British Government on seeing the plight of the depressed classes and their socio-economic, political and cultural condition. He mentioned in the report that even after the abolition of slavery in 1844, the practice continued in the name of Padiyaal (bonded labourer). At that point of time, lands were in the total control of persons who were considered to be in the caste hierarchy on a higher level and the bonded agricultural labourers and landless workers mainly belonged to the depressed classes. He noted in his report, "The small or marginal land holdings, housing, literacy, free labour without force/bondage, self-respect and dignity are the factors that could lead to transformation in (their lives)". Based on this, the British Parliament passed the Depressed Class Land Act in the year 1892 and 12,00,000 acres of land were distributed to them in Tamil Nadu. The lands were called Panchami lands and were given away under certain conditions, viz., that they cannot sell the lands or lease them out or give as gifts or pledge them for the first ten years and after the expiry of the ten year period, the lands could be transferred, but only to persons belonging to the depressed classes and any breach of these conditions will entail cancellation of the assignment. It would appear that these conditions were imposed bearing in mind that it would be easy to exploit persons belonging to the depressed classes who had long been kept in a subjugated condition."
73. The Division Bench has also taken note of the fact that vast extents of the lands, distributed to the weaker sections of the society, are not with them. The Division Bench, at Paragraph 4 of the judgment, observed as follows:
"Today, statistics reveal that vast extents of the lands so distributed are now with the persons who do not belong to the depressed classes. Therefore, the conditions appear to have been violated without any restraint or check. The Special Form-D applies to order for assignment of lands to Scheduled Castes and Condition No.9 reads as follows:-
"If the land is alienated to any person within a period of ten years from the date of the grant by way of sale, gift, mortgage or lease of any kind, or after that period, to any person who is not a member of the Scheduled Caste..., the grant will be liable to be resumed by the Government who will be entitled to re-enter and take possession of the land without payment of any compensation or refund of the purchase money."
Several Government Orders have been passed, as for instance, G.O. Ms. No.2217, Revenue dated 1.10.1941; G.O. Ms. No.3092, Revenue dated 12.12.1946, etc. which affirm the same conditions."
74. Perusal of the Division Bench judgment shows that the appellant, VGP Prem Nagar, private housing company, has purchased panchami lands, which were once allotted to depressed classes. One of the contentions before the Division Bench by the Government was that as per Standing Order No.15 of the Board of Revenue, the lands cannot be alienated to any person for ten years from the date of assignment and thereafter, they can only be alienated to a person belonging to a depressed class and if the lands are so alienated to persons other than the depressed class, then the Government has the power to resume such land. On the other hand, the purchaser, VGP Prem Nagar has contended that such a restraint on alienation is void. The appellant, VGP Prem Nagar, before the Bench has also contended that the decisions relied on by the learned Single Judge were based on Karnataka State Acts, which had a specific provision and those cases cannot be applied, since State of Tamil Nadu does not have a similar Act, dealing with the subject.
75. In the above reported case, alienation of the lands was made in the year 1925. Following the judgments in Uttar Pradesh State v. Sagur Ahamed reported in AIR 1973 SC 2520, Sri Manche Gowda v. State of Karnataka reported in AIR 1984 SC 1151, K.Palaniappan @ K.Subramaniam v. The Government of Tamil Nadu reported in 1992 (2) MLJ 561, State of M.P. v. Ram Krishna Balothia reported in AIR 1995 SC 1198, Consumer Education and Research Centre v. Union of India reported in 1995 (3) SCC 42, R.Chandevarappa v. State of Karnataka reported in 1995 (6) SCC 309 and Papaiah v. State of Karnataka and others reported in 1996 (10) SCC 533, the Division Bench dismissed the Writ Appeals and rejected the contentions raised by the transferee. The Division Bench has declined to accept the contention of the transferee, that the restraint imposed on alienation was void. On the contrary, while dismissing the Writ Appeal, the Division Bench has affirmed the view of the writ Court, that the alienation made to VGP, was contrary to the conditions of grant and hence, void, meaning thereby, the permanent restriction imposed on the assignee as valid in law. Thus, it is evident from the Division Bench judgment in VPG's case (stated supra), the principles of law laid by the Supreme Court, in the matter of assignment of lands to a member of the Scheduled Caste, have been followed, no matter, whether there is any law on the subject in the State of Tamil Nadu or not.
76. Though the petitioner has challenged the validity of G.O.Ms.No.2555, Revenue Department, dated 14.05.1973, now, in view of the judgment made in W.P.No.10277 of 1994 and S.A.No.611 of 1998, dated 24.08.2005, it is the contention of the learned counsel for the petitioner, when the G.O., has been held to have only prospective effect, the assignment granted prior to the date of issuance of the G.O., i.e., 30.11.1924, cannot be cancelled by the Special Commissioner and Commissioner for Land Administration, Chennai. Now, the very same G.O., has been relied on by the petitioner to contend that the Tahsildar or the Revenue Divisional Officer, has no authority to cancel an assignment and it is only the Special Commissioner and Commissioner for Land Administration, Chennai, has the authority to cancel the assignment. From the above, it is the admitted and specific case of the petitioner that only the Special Commissioner and Commissioner for Land Administration, Chennai, is the authority to cancel the assignment and not the subordinate officers, but subject to the period of limitation of three years, from the date of assignment. G.O.Ms.No.2555, Revenue Department, dated 14.05.1973, is extracted hereunder:-
GOVERNMENT OF TAMIL NADU Abstract Land-Revision of Powers by Revenue Divisional Officers and Collectors Orders Passed.
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REVENUE DEPARTMENT G.O.Ms.No.2555 Dated 14.05.1973 ORDER :
According to the Board's Standing Order 15-18, regulating assignment of lands, if at anytime, within three years of the original or appellate decision, the Collector is satisfied that there has been material irregularity in the procedure or that the decision was grossly inequitable or that it exceeded the powers of the officer who passed it or that it was passed under a mistake of fact or owing to fraud or misrepresentation, he may, in the case of an order passed by an officer subordinate to him, set aside, cancel or ion any way modify the decision.
2. As the Collector's conference held on 1-7-1972, a suggestion was made that the Revenue Divisional Officers may be empowered to cancel assignment is cases falling under Board's Standing Order 11-13 provided that the cancellation was within a period of three years from the date of assignment and that the Collector should similarly as empowered if the cancellation was after the expiry of three years from the date of assignment.
3. The Government accept the suggestions made at the Collector's conference held on 1-7-1972 and direct that the powers of revision now exercised by the Collector under BSO 15-18 in regard to the cancellation or modification of the orders of assignment made by the Tahsildar within a period of three years of the original decision be delegated to the Revenue Divisional Officer, and that the Collectors be empowered to cancel or modify the order of assignment made by the Tahsildar and Revenue Divisional Officer without any time limit.
4. The Board of Revenue is registered to submit draft amendment to the BSO for approval of the Government.
77. Reading of the G.O.Ms.No.2555, Revenue Department, dated 14.05.1973, makes it clear that for cancellation of any assignment, granted by a subordinate officer, Viz., Tahsildar or Revenue Divisional Officer, as the case may be, previously the Collector, was the authority and that for cancellation of assignment, he has to arrive at a prima facie conclusion that,
1)there had been a material irregularity in the procedure
2)that the decision was grossly inequitable
3)that it exceeded the powers of the officer which regulated the assignment of land.
4)That the order passed was under a mistake of fact or owing to fraud or misrepresentation.
78. In case, the then competent authority, the Collector comes to a conclusion that any one of the above conditions exists, and if an order of assignment has been passed by an officer subordinate to him, then the District Collector can set aside or modify the decision. A bare reading of the order itself makes it clear that the powers conferred on the then competent authority, the District Collector, can be exercised suo motu or if it is brought to his knowledge that, while granting assignment, there was any illegality or irregularity or impropriety or fraud or the assignment was grossly inequitable or due to mistake of fact, owing to misrepresentation or in excess of jurisdiction and for other reasons, such assignment can be cancelled within 3 years from the date of assignment. In the opinion of this Court, the G.O. at no stretch of imagination speaks about contravention of the conditions of grant or the revenue code. There is a total mis-construction of the G.O., by the petitioner that it applies even to the case of contravention. At this juncture, it is worthwhile to reiterate the discussion in the Collector's meeting held on 01.07.1992 and the decision taken by the Government, warranting the issuance of the G.O. The discussion and the decision of the Government was only with reference to the exercise of power by the District Collector or the Special Commissioner and Commissioner for Land Administration, Chennai, for cancelling the assignment, if the assignment granted falls under any one of the circumstances stated supra in the G.O., and not cancellation of the assignment for contravention of the conditions of grant or the revenue code.
79. G.O.Ms.No.2555, has been issued by the Government, taking note of the specific instances, where assignment has been granted by the subordinate authorities, like the Tahsildar or Revenue Divisional Officer. Earlier, power has been conferred on the Collector to cancel the assignment granted by the abovesaid subordinate officials, when the assignment falls under anyone of the instances, stated supra. Now, by virtue of G.O.Ms.No.2555, the power, which was earlier conferred on the District Collector, for cancellation of assignment, for the reasons contained in the G.O., within three years, has been taken away and conferred on the Special Commissioner and Commissioner for Land Administration. The said G.O., cannot be said to have divested the powers of the subordinate officials, in case of contravention of the condition of grant or the Revenue Code. There are provisions, as stated supra, empowering the Tahsildar and the Revenue Divisional Officer, to assign lands under the Board Standing Orders. If that interpretation has to be given effect, then no Tahsildar or Revenue Divisional Officer, can cancel any assignment, if any contravention is found.
80. Files further disclose that when a request was made by the petitioner to recind the cancellation of patta and to re-issue the same, in favour of the petitioner, vide proceedings in Rc.B2.32464/94, dated 19.05.2011, a reply has been sent to the petitioner to the effect that since the assignment itself had already been cancelled in the year 1984 and the challenge, by way of appeal and revision, had already been rejected and inasmuch as resumption proceedings have already been initiated, the request has been rejected as not feasible for consideration.
81. This Court is of the view that the petitioner has fundamentally misconceived the purport of the G.O., as if the same is applicable to the case of contravention of the conditions of grant and revenue code. The object of the G.O., is only to check that the assignment granted by the subordinate officer does not fall within the parameters, illegality, irregularity, impropriety etc. The G.O., speaks only about the cancellation of an assignment, if it is found that the manner in which the assignment has been obtained, does not, in broad sense, fall within the above parameters and contrary to law. In effect, the G.O., confers a supervisory power on the Special Commissioner and Commissioner for Land Administration, Chennai, to check that the subordinate officers do not assign lands, arbitrarily. The G.O., does not curtail the powers of the Tahsildar or the Revenue Divisional Officer, to take appropriate action, in the case of contravention of the conditions of grant or the Revenue Code.
82. Though the learned counsel for the petitioner has contended that alienation can be made 10 years, after the date of assignment to a member other than depressed class and therefore the petitioner has acquired a right over the property, no such Government Order, in existence on the date of assignment, enabling alienation to a member other than scheduled caste community, has been brought to the notice of this Court. The Supreme Court in many judgments has made it clear that no alienation can be made to a person other than scheduled caste community and if it is done, it is opposed to the public policy, constitutional provisions and liable for cancellation and resumption of land has to be made by the Government.
83. Land is a source of strength for livelihood, and economic justice. Empowerment of the weaker sections of the society can be achieved, only if the authorities safeguard and protect them from exploitation of the rich and resourceful. The permanent restriction of alienation to a member outside the scheduled caste community makes it clear that the intention of the Government is to retain the said land, as permanently heritable only by the members of the said community, so that the source remains permanently. Even a member of the scheduled caste community has no right to enrich himself, by selling the land assigned to a person, other than scheduled caste community Therefore, any contract executed by him is void. The said lands are reserved lands for the economic empowerment of the weaker sections of the society. Violator of the conditions of assignment is not entitled to enjoy the fruits of the grant, but at the same time, some other deserving and depressed class member is entitled for grant, for which, the lands have to be resumed. The non-alienation clause specified in the grant or the provisions of the Revenue Code is intended to prohibit alienation due to ignorance, poverty or exploitation of rich or affluent or powerful or even in the case, where such assignee intends to make money out of assignment, without realising the object, for which the assignment is made, i.e., economic justice and empowerment of the weaker sections of the society intended to bring them into the mainstream and by the process, eliminate dependency and bondage, then the assignment is opposed to public policy and constitutional provision. In case of any contravention or violation of the grant or the Revenue Code, the competent authority is empowered to restore the land from the assignee and retain such lands for the purpose of assignment of land to another deserving person. There is a total prohibition for alienation of the lands assigned to a member of the scheduled caste community to a third party, and that any sale or mortgage, gift etc., contrary to the purpose or for any other incidental transactions, namely, for purchasing agricultural appliances or loan to promote agriculture or for any other lawful purpose, outside the scope and purpose of grant, is not permissible. Any contract executed to a member, who does not belong to Scheduled Caste community, either within or after the completion of 10 years, from the date of assignment, is declared as void abinitio.
84. Any person not being a member of the scheduled caste community or tribe, and who purchases the land only acquires a defeasible legal right and he cannot make any grievance of violation of Article 19(1) (F) of the Constitution of India. Such transferee whether the assigned land has been purchased with or without the knowledge of the conditions, does not acquire any title to the property. His right to hold and continue possession and enjoyment is not indefeasible. It also does not confer any right to squat over a property which is liable for resumption to the Government. The Supreme Court has also made it clear that such a kind of defeasible right of the transferee in the granted lands cannot be considered to be property as contemplated in Articles 31 and 31(A) of the Constitution. The Apex Court has made it clear stated that nature of the right of the transferee in the granted lands, on transfer of such lands, in breach of the conditions of prohibition relating to such transfer, the object of such grant in the terms thereof also, the law governing such grants and the object of the scheme of the Act enacted for the benefit of the weaker sections of the society, would clearly go to show that there is no case of deprivation of such a right and property to attract the provisions of the Constitution. Such transaction has been held to be void in the eye of law. The transferee has no right and interest over the property.
85. Action for violation or contravention of the conditions of grant or the revenue code can be made at any time, if the assignment is conditional, as in the instant case, the assignee shall not alienate by sale, gift, pledge, etc, within a period of ten years from the date of assignment even to a member belong to scheduled caste community, and within or after the period of ten years from the date of assignment, he shall not alienate to a member outside the scheduled caste community and it is totally barred. The object of the condition in the assignment is that the land should be heritable only by a member of the scheduled caste community and it is intended to be permanently possessed and enjoyed, only by the members of the scheduled caste community, so that it advances the object of achieving economic empowerment and that the land does not pass on to a rich or powerful or those, who could exploite poverty and ignorance. The Tahsildar or Revenue Divisional Officer can give permission to sell the land only to the member belonging to the same community, if the sale is one of the categories eligible for assignment. It is thus made it clear that the object of the assignment itself is exclusive, for the purpose of possession and enjoyment of the lands personally by a member of the scheduled caste community from generation to generation to augment economic status, so as to secure economic injustice, as envisaged in the Constitution of India and the Directive principles of the state policy. At this juncture, it is worthwhile to extract the Preamble and Articles 38 39(b) and 46 of the Constitution of India.
WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens:
JUSTICE, social, economic and political;
LIBERTY of thought, expression, belief, faith and worship;
EQUALITY of status and of opportunity;
and to promote among them all FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation;
IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November, 1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.
38. State to secure a social order for the promotion of welfare of the people.(1) The State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life.
(2) The State shall, in particular, strive to minimise the inequalities in income, and endeavour to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations.
39. Certain principles of policy to be followed by the State.The State shall, in particular, direct its policy towards securing
(b) that the ownership and control of the material resources of the community are so distributed as best to subserve the common good.
46. Promotion of educational and economic interests of Scheduled Castes, Scheduled Tribes and other weaker sections.The State shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation.
86. If any alienation such as sale, mortgage, gift etc., is made to an outsider irrespective of the purpose or period then the assignment is liable to be cancelled for contravention of the conditions of grant and the revenue code. Therefore, the contention that after the completion of ten years from the date of assignment, the assignee of the land gets an absolute right or ownership to sell or mortgage or gift or transfer the land to a member outside the scheduled caste community is wholly misconceived.
Let me now consider some of the guiding principles of the Apex Court on the principles of natural justice.
87. In S.L. Kapoor v. Jagmohan [1980 (4) SCC 379] a three-Judge Bench of this Court while following the principle in Ridge v. Baldwin [1964 AC 40] stated that if upon admitted or indisputable facts only one conclusion was possible, then in such a case that principle of natural justice was in itself prejudice would not apply. Thus, every case would have to be examined on its own merits and keeping in view the statutory rules applying to such departmental proceedings.
88. In K.L. Tripathi v. SBI reported in (1984) 1 SCC 43, at Paragraphs 31, 33 and 41, held as follows:
"31. Wade in his Administrative Law, 5th Edn. at pp. 472-475 has observed that it is not possible to lay down rigid rules as to when the principles of natural justice are to apply: nor as to their scope and extent. Everything depends on the subject-matter, the application of principles of natural justice, resting as it does upon statutory implication, must always be in conformity with the scheme of the Act and with the subject-matter of the case. In the application of the concept of fair play there must be real flexibility. There must also have been some real prejudice to the complainant; there is no such thing as a merely technical infringement of natural justice. The requirements of natural justice must depend on the facts and the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter to be dealt with, and so forth.
33. ........Where there is no dispute as to the facts, or the weight to be attached on disputed facts but only an explanation of the acts, absence of opportunity to cross-examination does not create any prejudice in such cases.
41. It is true that all actions against a party which involve penal or adverse consequences must be in accordance with the principles of natural justice but whether any particular principle of natural justice would be applicable to a particular situation or the question whether there has been any infraction of the application of that principle, has to be judged, in the light of facts and circumstances of each particular case. The basic requirement is that there must be fair play in action and the decision must be arrived at in a just and objective manner with regard to the relevance of the materials and reasons. We must reiterate again that the rules of natural justice are flexible and cannot be put on any rigid formula. In order to sustain a complaint of violation of principles of natural justice on the ground of absence of opportunity of cross-examination, it has to be established that prejudice has been caused to the appellant by the procedure followed. See in this connection the observations of this Court in the case of Jankinath Sarangi v. State of Orissa [1969 (3) SCC 392], Hidayatullah, C.J., observed there at p. 394 of the Report: .. .there is no doubt that if the principles of natural justice are violated and there is a gross case this Court would interfere by striking down the order of dismissal; but there are cases and cases. We have to look to what actual prejudice has been caused to a person by the supposed denial to him of a particular right. Judged by this principle, in the background of the facts and circumstances mentioned before, we are of the opinion that there has been no real prejudice caused by infraction of any particular rule of natural justice of which appellant before us complained in this case. See in this connection the observations of this Court in the case of Union of India v. P.K. Roy [(1968) 2 SCR 186], where this Court reiterated that (SCR p. 202) the doctrine of natural justice cannot be imprisoned within the strait-jacket of a rigid formula and its application depends upon the nature of the jurisdiction conferred on the administrative authority, upon the character of the rights of the persons affected, the scheme and policy of the statute and other relevant circumstances disclosed in a particular case. See also in this connection the observations of Hidayatullah, C.J.. in the case of Channabasappa Basappa Happali v. State of Mysore [1971 (2) SCR 645]. In our opinion, in the background of facts and circumstances of this case, the nature of investigation conducted in which the appellant was associated, there has been no infraction of that principle. In the premises, for the reasons aforesaid. there has been in the facts and circumstances of the case, no infraction of any principle of natural justice by the absence of a formal opportunity of cross-examination. Neither cross-examination nor the opportunity to lead evidence by the delinquent is an integral part of all quasi-judicial adjudications."
89. In State Bank of Patiala v. S.K.Sharma reported in 1996 (3) SCC 364, at Paragraph 33, the Supreme Court summarized the principles in the case of departmental proceedings, as follows:
"(1) .........
(2) ..........
(3) In the case of violation of a procedural provision, the position is this: procedural provisions are generally meant for affording a reasonable and adequate opportunity to the delinquent officer/employee. They are, generally speaking, conceived in his interest. Violation of any and every procedural provision cannot be said to automatically vitiate the enquiry held or order passed. Except cases falling under no notice, no opportunity and no hearing categories, the complaint of violation of procedural provision should be examined from the point of view of prejudice, viz., whether such violation has prejudiced the delinquent officer/employee in defending himself properly and effectively. If it is found that he has been so prejudiced, appropriate orders have to be made to repair and remedy the prejudice including setting aside the enquiry and/or the order of punishment. If no prejudice is established to have resulted therefrom, it is obvious, no interference is called for. In this connection, it may be remembered that there may be certain procedural provisions which are of a fundamental character, whose violation is by itself proof of prejudice. The Court may not insist on proof of prejudice in such cases. .........To repeat, the test is one of prejudice, i.e., whether the person has received a fair hearing considering all things. Now, this very aspect can also be looked at from the point of view of directory and mandatory provisions, if one is so inclined. The principle stated under (4) hereinbelow is only another way of looking at the same aspect as is dealt with herein and not a different or distinct principle.
(4)(a) In the case of a procedural provision which is not of a mandatory character, the complaint of violation has to be examined from the standpoint of substantial compliance. Be that as it may, the order passed in violation of such a provision can be set aside only where such violation has occasioned prejudice to the delinquent employee.
(b) .........The ultimate test is always the same, viz., test of prejudice or the test of fair hearing, as it may be called.
(5) Where the enquiry is not governed by any rules/regulations/ statutory provisions and the only obligation is to observe the principles of natural justice or, for that matter, wherever such principles are held to be implied by the very nature and impact of the order/action the Court or the Tribunal should make a distinction between a total violation of natural justice (rule of audi alteram partem) and violation of a facet of the said rule, as explained in the body of the judgment. In other words, a distinction must be made between no opportunity and no adequate opportunity, i.e., between no notice/no hearing and no fair hearing. (a) In the case of former, the order passed would undoubtedly be invalid (one may call it void or a nullity if one chooses to). In such cases, normally, liberty will be reserved for the Authority to take proceedings afresh according to law, i.e., in accordance with the said rule (audi alteram partem). (b) But in the latter case, the effect of violation (of a facet of the rule of audi alteram partem) has to be examined from the standpoint of prejudice; in other words, what the Court or Tribunal has to see is whether in the totality of the circumstances, the delinquent officer/employee did or did not have a fair hearing and the orders to be made shall depend upon the answer to the said query. [It is made clear that this principle (No. 5) does not apply in the case of rule against bias, the test in which behalf are laid down elsewhere.]"
(6) While applying the rule of audi alteram partem (the primary principle of natural justice) the Court/Tribunal/Authority must always bear in mind the ultimate and overriding objective underlying the said rule, viz., to ensure a fair hearing and to ensure that there is no failure of justice. It is this objective which should guide them in applying the rule to varying situations that arise before them.
(7) There may be situations where the interests of State or public interest may call for a curtailing of the rule of audi alteram partem. In such situations, the Court may have to balance public/State interest with the requirement of natural justice and arrive at an appropriate decision."
90. In State of Maharastra v. Jalgaon Municipal Council [2003 (9) SCC 731], the Supreme Court held as follows:
32. There is also a situation which Prof. Wade and Forsyth term as dubious doctrine that right to a fair hearing may stand excluded where the court forms an opinion that a hearing would make no difference.
91. In Canara Bank v. V.K.Awasthy reported in 2005 (6) SCC 321, the Supreme Court has traced down the meaning, sources, history of development and significance of principles of natural justice. It is a case relating to punishment. There was also a complaint of violation of natural justice. At Paragraphs 14 to 17, the Supreme Court has explained the principles of natural justice, as follows:
"14. Concept of natural justice has undergone a great deal of change in recent years. Rules of natural justice are not rules embodied always expressly in a statute or in rules framed thereunder. They may be implied from the nature of the duty to be performed under a statute. What particular rule of natural justice should be implied and what its context should be in a given case must depend to a great extent on the fact and circumstances of that case, the framework of the statute under which the enquiry is held. The old distinction between a judicial act and an administrative act has withered away. Even an administrative order which involves civil consequences must be consistent with the rules of natural justice. The expression civil consequences encompasses infraction of not merely property or personal rights but of civil liberties, material deprivations and non-pecuniary damages. In its wide umbrella comes everything that affects a citizen in his civil life.
15. Natural justice has been variously defined by different Judges. A few instances will suffice. In Drew v. Drew and Leburn [(1855) 2 Macq 1] (Macq at p. 8) Lord Cranworth defined it as universal justice. In James Dunber Smith v. R. [(1878) 3 AC 614(PC)] (AC at p. 623) Sir Robert P. Collier, speaking for the Judicial Committee of the Privy Council, used the phrase the requirements of substantial justice, while inArthur John Spackman v. Plumstead Distt. Board of Works [(1885) 10 AC 229], (AC at p. 240), the Earl of Selbourne, S.C. preferred the phrase the substantial requirement of justice. In Vionet v. Barrett [(1885) 55 LJRD 39] (LJRD at p. 41), Lord Esher, M.R. defined natural justice as the natural sense of what is right and wrong. While, however, deciding Hopkins v. Smethwick Local Board of Health [(1890) 24 QBD 712]. Lord Fasher, M.R. instead of using the definition given earlier by him in Vionet case chose to define natural justice as fundamental justice. In Ridge v. Baldwin [(1963) 1 QB 539] (QB at p. 578), Harman, L.J., in the Court of Appeal countered natural justice with fair play in action, a phrase favoured by Bhagwati, J. in Maneka Gandhi v. Union of India [(1978) 1 SCC 248]. In HK (an infant), In re [(1967) 2 QB 617] (QB at p. 530), Lord Parker, C.J., preferred to describe natural justice as a duty to act fairly. In Fairmount Investments Ltd. v. Secy. of State for Environment [(1976) 1 WLR 1255], Lord Russell of Willowan somewhat picturesquely described natural justice as a fair crack of the whip while Geoffrey Lane, L.J. in R. v. Secy. of State for Home Affairs, ex p Hosenball [(1977) 1 WLR 766] preferred the homely phrase common fairness.
16. How then have the principles of natural justice been interpreted in the courts and within what limits are they to be confined? Over the years by a process of judicial interpretation two rules have been evolved as representing the principles of natural justice in judicial process, including therein quasi-judicial and administrative process. They constitute the basic elements of a fair hearing, having their roots in the innate sense of man for fair play and justice which is not the preserve of any particular race or country but is shared in common by all men. The first rule is nemo judex in causa sua or nemo debet esse judex in propria causa sua as stated in (1605) 12 Co. Rep. 114 that is, no man shall be a judge in his own cause. Coke used the form aliquis non debet esse judex in propria causa, quia non potest esse judex et pars (Co. Litt. 1418), that is, no man ought to be a judge in his own case, because he cannot act as judge and at the same time be a party. The form nemo potest esse simul actor et judex, that is, no one can be at once suitor and judge is also at times used. The second rule is audi alteram partem, that is, hear the other side. At times and particularly in continental countries, the form audietur at altera pars is used, meaning very much the same thing. A corollary has been deduced from the above two rules and particularly the audi alteram partem rule, namely qui aliquid statuerit parte inaudita altera, aequum licet dixerit, haud aequum fecerit that is, he who shall decide anything without the other side having been heard, although he may have said what is right, will not have been what is right (see Bosewell case [(1605) 6 Co. Rep. 48-b, 52-a]) or in other words, as it is now expressed, justice should not only be done but should manifestly be seen to be done. Whenever an order is struck down as invalid being in violation of principles of natural justice, there is no final decision of the case and fresh proceedings are left open. All that is done is to vacate the order assailed by virtue of its inherent defect, but the proceedings are not terminated.
17. What is known as useless formality theory has received consideration of this Court in M.C. Mehta v. Union of India [(1999) 6 SCC 237]. It was observed as under: (SCC pp. 245-47, paras 22-23) 22. Before we go into the final aspects of this contention, we would like to state that cases relating to breach of natural justice do also occur where all facts are not admitted or are not all beyond dispute. In the context of those cases there is a considerable case-law and literature as to whether relief can be refused even if the court thinks that the case of the applicant is not one of real substance or that there is no substantial possibility of his success or that the result will not be different, even if natural justice is followed. See Malloch v. Aberdeen Corpn. [(1971) 2 All.ER 1278] (per Lord Reid and Lord Wilberforce), Glynn v. Keele University [(1971) 2 All.ER 89], Cinnamond v. British Airports Authority [(1980) 2 All ER 368 (CA)] and other cases where such a view has been held. The latest addition to this view is R. v. Ealing Magistrates' Court, ex p Fannaran [(1996) 8 Admn LR 351 (Admn LR at p. 358) (see de Smith, Suppl. p. 89) (1998) where Straughton, L.J. held that there must be demonstrable beyond doubt that the result would have been different. Lord Woolf in Lloyd v. McMahon [(1987) 1 All ER 1118] (WLR at p. 862) has also not disfavoured refusal of discretion in certain cases of breach of natural justice. The New Zealand Court in McCarthy v. Grant [1959 NZLR 1014] however goes halfway when it says that (as in the case of bias), it is sufficient for the applicant to show that there is real likelihood not certainty of prejudice. On the other hand, Garner Administrative Law (8th Edn., 1996, pp. 271-72) says that slight proof that the result would have been different is sufficient. On the other side of the argument, we have apart from Ridge v. Baldwin [1964 AC 40], Megarry, J. in John v. Rees [(1969) 2 All. ER 274] stating that there are always open and shut cases and no absolute rule of proof of prejudice can be laid down. Merits are not for the court but for the authority to consider. Ackner, J. has said that the useless formality theory is a dangerous one and, however inconvenient, natural justice must be followed. His Lordship observed that convenience and justice are often not on speaking terms. More recently, Lord Bingham, has deprecated the useless formality theory in R. v. Chief Constable of the Thames Valley Police Forces, ex p Cotton [1990 IRLR 344] by giving six reasons. (See also his article Should Public Law Remedies be Discretionary? 1991 PL, p. 64.) A detailed and emphatic criticism of the useless formality theory has been made much earlier in Natural Justice, Substance or Shadow by Prof. D.H. Clark of Canada (see 1975 PL, pp. 27-63) contending that Malloch and Glynn were wrongly decided. Foulkes (Administrative Law, 8th Edn., 1996, p. 323), Craig (Administrative Law, 3rd Edn., p. 596) and others say that the court cannot prejudge what is to be decided by the decision-making authority. De Smith (5th Edn., 1994, paras 10.031 to 10.036) says courts have not yet committed themselves to any one view though discretion is always with the court. Wade (Administrative Law, 5th Edn., 1994, pp. 526-30) says that while futile writs may not be issued, a distinction has to be made according to the nature of the decision. Thus, in relation to cases other than those relating to admitted or indisputable facts, there is a considerable divergence of opinion whether the applicant can be compelled to prove that the outcome will be in his favour or he has to prove a case of substance or if he can prove a real likelihood of success or if he is entitled to relief even if there is some remote chance of success. We may, however, point out that even in cases where the facts are not all admitted or beyond dispute, there is a considerable unanimity that the courts can, in exercise of their discretion, refuse certiorari, prohibition, mandamus or injunction even though natural justice is not followed. We may also state that there is yet another line of cases as in State Bank of Patiala v. S.K. Sharma [(1996) 3 SCC 364], Rajendra Singh v. State of M.P. [(1996) 5 SCC 460] that even in relation to statutory provisions requiring notice, a distinction is to be made between cases where the provision is intended for individual benefit and where a provision is intended to protect public interest. In the former case, it can be waived while in the case of the latter, it cannot be waived.
23. We do not propose to express any opinion on the correctness or otherwise of the useless formality theory and leave the matter for decision in an appropriate case, inasmuch as, in the case before us, admitted and indisputable facts show that grant of a writ will be in vain as pointed out by Chinnappa Reddy,J.
92. In Rajesh Kumar v. Dy.CIT reported in 2007 (2) SCC 181, at Parapraphs 20 and 21, held as follows:
"20. Principles of natural justice are based on two basic pillars:
(i) Nobody shall be condemned unheard (audi alteram partem).
(ii) Nobody shall be judge of his own cause (nemo debet esse judex in propria sua causa).
21. Duty to assign reasons is, however, a judge-made law. There is dispute as to whether it comprises of a third pillar of natural justice. (See S.N. Mukherjee v. Union of India1 and Reliance Industries Ltd. v. Designated Authority [2006 (10) SCC 368])
93. In H.P.Transport Corporation v. K.C.Rahi reported in 2008 (11) SCC 502, at Paragraph 7, held as follows:
"7. The principle of natural justice cannot be put in a straitjacket formula. Its application depends upon the facts and circumstances of each case. To sustain a complaint of non-compliance with the principle of natural justice, one must establish that he has been prejudiced thereby for non-compliance with principle of natural justice."
94. In Sahara India (FIRM) v. CIT reported in 2008 (14) SCC 151, at Paragraphs 15, held as follows:
"15. Rules of natural justice are not embodied rules. The phrase natural justice is also not capable of a precise definition. The underlying principle of natural justice, evolved under the common law, is to check arbitrary exercise of power by the State or its functionaries. Therefore, the principle implies a duty to act fairly i.e. fair play in action. As observed by this Court in A.K. Kraipak v. Union of India [(1969) 2 SCC 262] the aim of rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. They do not supplant the law but supplement it. (Also see ITO v. Madnani Engg. Works Ltd. [(1979) 2 SCC 455])
95. In Prakash Ratan Sinha v. State of Bihar reported in 2009 (14) SCC 690, the Supreme Court has explained the doctrine of useless formality theory and doctrine of futile exercise. At Paragraphs 13 and 14, after considering a catena of decisions, the Supreme Court held as follows:
"13. The law in this regard has been settled by several decisions of this Court. The principle that emerge from the decisions of this Court is that, if there is a power to decide and decide detrimentally to the prejudice of a person, duty to act judicially is implicit in exercise of such a power and that the rule of natural justice operates in areas not covered by any law validly made.
14. Corollary principles emanating from these cases are as to what particular rule of natural justice should apply to a given case must depend to an extent on the facts and circumstances of that case and that it is only where there is nothing in the statute to actually prohibit the giving of an opportunity of being heard and on the other hand, the nature of the statutory duty imposed on the decision maker itself implies an obligation to hear before deciding. These cases have also observed, whenever an action of public body results in civil consequences for the person against whom the action is directed, the duty to act fairly can be presumed and in such a case, the administrative authority must give a proper opportunity of hearing to the affected person."
96. In Union of India v. Alok Kumar reported in 2010 (5) SCC 349, violation of principles of natural justice in a departmental enquiry was complained. It was the case of Union of India that there was no violation of any statutory rule or provision of the Act and the respondents therein did not suffer any prejudice, much less prejudice de facto. Dealing with the above submission, the Supreme Court, held as follows:
"83. Earlier, in some of the cases, this Court had taken the view that breach of principles of natural justice was in itself a prejudice and no other de facto prejudice needs to be proved. In regard to statutory rules, the prominent view was that the violation of mandatory statutory rules would tantamount to prejudice but where the rule is merely directory the element of de facto prejudice needs to be pleaded and shown. With the development of law, rigidity in these rules is somewhat relaxed. The instance of de facto prejudice has been accepted as an essential feature where there is violation of the non-mandatory rules or violation of natural justice as it is understood in its common parlance. Taking an instance, in a departmental enquiry where the department relies upon a large number of documents majority of which are furnished and an opportunity is granted to the delinquent officer to defend himself except that some copies of formal documents had not been furnished to the delinquent. In that event the onus is upon the employee to show that non-furnishing of these formal documents have resulted in de facto prejudice and he has been put to a disadvantage as a result thereof.
84. Even in the present cases, Rule 9(2) empowers the disciplinary authority to conduct the inquiry itself or appoint other authority to do so. We have already held that the language of Rule 9(2) does not debar specifically or even by necessary implication appointment of a former employee of the Railways as enquiry officer. Even if, for the sake of argument, it is assumed otherwise, all the respondents have participated in the departmental enquiries without protest and it is only after the orders of the competent authority have been passed that they have raised this objection before the courts. In the light of the peculiar facts and circumstances of the present case, it is obligatory upon the respondents to show that they have suffered some serious prejudice because of appointment of retired railway officers as enquiry officers. We have no hesitation in stating that the respondents have in no way satisfied this test of law."
97. At Paragraph 89 in Alok Kumar's case (cited supra), the Supreme Court further held as follows:
"Prejudice de facto should not be based on a mere apprehension or even on a reasonable suspicion. It is important that the element of prejudice should exist as a matter of fact or there should be such definite inference of likelihood of prejudice flowing from such default which relates to statutory violations."
98. Ultimately, at Paragraph 92 in Alok Kumar's case (cited supra), the Supreme Court held that, "No doubt in some judgments the Court has taken this view but that is primarily on the peculiar facts in those cases where prejudice was caused to the delinquent. Otherwise right from S.L. Kapoor case, a three-Judge Bench of this Court and even the most recent judgment as referred to by us in Kailash Chandra Ahuja case has taken the view that de facto prejudice is one of the essential ingredients to be shown by the delinquent officer before an order of punishment can be set aside, of course, depending upon the facts and circumstances of a given case. Judicia posteriora sunt in lege fortiora. In the latter judgment the view of this Court on this principle has been consistent and we see no reason to take any different view. Prejudice normally would be a matter of fact and a fact must be pleaded and shown by cogent documentation to be true. Once this basic feature lacks, the appellant may not be able to persuade the Court to interfere with the departmental enquiry or set aside the orders of punishment."
99. In Competition Commission of India v. Steel Authority of India Ltd., reported in 2010 (10) SCC 744, at Paragraphs 66, 68 and 79, held as follows:
"66. The issue of notice and hearing are squarely covered under the ambit of the principles of natural justice. Thus, it will not be inappropriate to discuss these issues commonly under the same head. The principle of audi alteram partem, as commonly understood, means hear the other side or hear both sides before a decision is arrived at. It is founded on the rule that no one should be condemned or deprived of his right even in quasi-judicial proceedings unless he has been granted liberty of being heard.
68. Generally, we can classify compliance or otherwise, with these principles mainly under three categories. First, where application of principles of natural justice is excluded by specific legislation; second, where the law contemplates strict compliance with the provisions of the principles of natural justice and default in compliance therewith can result in vitiating not only the orders but even the proceedings taken against the delinquent; and third, where the law requires compliance with these principles of natural justice, but an irresistible conclusion is drawn by the competent court or forum that no prejudice has been caused to the delinquent and the non-compliance is with regard to an action of directory nature. The cases may fall in any of these categories and therefore, the court has to examine the facts of each case in light of the Act or the rules and regulations in force in relation to such a case. It is not only difficult but also not advisable to spell out any straitjacket formula which can be applied universally to all cases without variation.
79. It is difficult to state as an absolute proposition of law that in all cases, at all stages and in all events the right to notice and hearing is a mandatory requirement of principles of natural justice. Furthermore, that non-compliance therewith, would always result in violation of fundamental requirements vitiating the entire proceedings.
100. In Natwar Singh v. Director of Enforcement reported in 2010 (13) SCC 216, violation of principles of natural justice was one of the grounds, in a matter, which arose out of the proceedings under the Foreign Exchange Management Act, 1999. At Paragraphs 26, the Supreme Court held as follows:
"26. Even in the application of the doctrine of fair play there must be real flexibility. There must also have been caused some real prejudice to the complainant; there is no such thing as a merely technical infringement of natural justice. The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter to be dealt with and so forth.
101. In Municipal Committee, Hoshiappur v. Punjab State Electricity Board reported in 2010 (13) SCC 216, at Paragraphs 31 to 33, the Supreme Court held as follows:
"31. The principles of natural justice cannot be applied in a vacuum without reference to the relevant facts and circumstances of the case. Thus, they cannot be put in a straitjacket formula.
13. Natural justice is [not an] unruly horse, no lurking landmine, nor a judicial cure-all. If fairness is shown by the decision-maker to the man proceeded against, the form, features and the fundamentals of such essential processual propriety being conditioned by the facts and circumstances of each situation, no breach of natural justice can be complained of.
32. The two rules of natural justice, namely, nemo judex in causa sua, and audi alteram partem now have a definite meaning and connotation in law and their contents and implications are well understood and firmly established; they are nonetheless non-statutory. The court has to determine whether the observance of the principles of natural justice was necessary for a just decision in the facts of the particular case. (Vide Board of Mining Examination and Chief Inspector of Mines v. Ramjee [(1977) 2 SCC 256], SCC p. 262, para 13; Union of India v. Tulsiram Patel [(1985) 3 SCC 398]; and ECIL v. B. Karunakar [(1993) 4 SCC 727])
102. There may be cases where on admitted and undisputed facts, only one conclusion is possible. In such an eventuality, the application of the principles of natural justice would be a futile exercise and an empty formality. (Vide State of U.P. v. Om Prakash Gupta [(1969) 3 SCC 775], S.L. Kapoor v. Jagmohan [(1980) 4 SCC 379] and U.P. Junior Doctors' Action Committee v. Dr. B. Sheetal Nandwani [(1990) 4 SCC 633])
103. Reverting back to the case on hand, from the perusal of the files and material on record, it is an indisputed fact that when the contravention of the conditions of grant has been noticed, the Revenue Divisional Officer, Vellore, has issued notices to the original assignees and the vendor. The legal heirs of the assignee have admitted the sale. The petitioner has also submitted his explanation on 13.09.1984, admitting the fact that the land has been purchased, without knowing the conditions of grant. The petitioner has not appeared in person. But in his explanation, he has requested the Revenue Divisional Officer, Vellore, to grant him right, by duly recommending to the Government. The relevant portion in the explanation is reproduced hereunder:
VERNACULAR (TAMIL) PORTION DELETED
104. From the explanation submitted that, it is manifestly clear that the petitioner himself has admitted that law does not permit such alienation. But the petitioner has requested to assign the land, by recommending to the Revenue Board or the Secretary to the Government. When the law does not provide for such alienation, even the Revenue Board or the Secretary to the Government, cannot break the law and favour an assignment to the petitioner, contrary to the provisions of the Revenue Code.
105. The Revenue Divisional Officer, Vellore, after considering the categorical admission made on the part of both the legal heirs of assignee and the vendors, has found that there is clear contravention of the conditions of grant and the revenue code, and accordingly vide order dated 05.11.1985 has cancelled the assignment. Thereafter, the vendor has preferred an appeal to the District Revenue Officer, Vellore. The said authority has confirmed the appeal. On the basis of the provisions of the Revenue Code (Board Standing Orders) and the conditions of grant already extracted, the facts to be ascertained are not complicated or complex. Rather it is pure and simple as to find out whether there has been any alienation contrary to the provisions of the revenue code and the conditions of grant. Contravention has been admitted. The provisions do not enable the assignee to alienate the assigned land, to any other member other than scheduled caste community. Restriction on alienation to others is permanent. The contention of the petitioner regarding construction of a mill or estoppel would not lend any support to improve the case of the petitioner insofar as the contravention of the conditions of grant or the revenue code is concerned. In the present writ petitions, the petitioner has also admitted the authority of the Special Commissioner and Commissioner for Local Administration, Chennai, to cancel the assignment, but subject to the period of limitation, which has already been considered in the foregoing paragraphs. Even as per the Revenue Code, Board Standing Order 15(1), the Land Commissioner, the competent authority is the revisional authority. Therefore, on the question of jurisdiction, there cannot be grievance to the petitioner. The revisional authority has considered the facts. He has also observed that for ignorance of the conditions of grant and the purchase made by the petitioner, the Government cannot be held responsible. As rightly contended by the Learned Additional Government Pleader, at each and every stage of the proceedings, the petitioner has been given adequate opportunity to put forth his case. No material behind the back of the petitioner has been obtained or taken into consideration, when the order of cancellation is made.
106. Fair and reasonable opportunity has been given to the petitioner at all stages. The petitioner has availed all the three stages, on the proceedings. There is no specific complaint of violation of natural justice, except the one pleaded in the writ petition, that the Special Commissioner and Commissioner for Land Administration, Chennai, ought to have given a fresh notice and opportunity, when he has passed an adverse order. What has been done by the Special Commissioner and Commissioner for Land Administration, is that by virtue of G.O.Ms.No.2555, conferring power upon him to cancel, he has cancelled the assignment. There is no jurisdictional error.
107. Notice is the making something known, of what a man was or might be ignorant of before. And it produces divers effects, for, by its, the party who gives the same shall have some benefit, which otherwise he should not have had; the party to whom the Notice is given is made subject to some action or charge, that otherwise he had not been liable to; and has estate in danger of prejudice. [Co.Lit.309 Tomlin's Law Dictionary]
108. Actual Notice is "When there is positive information of a fact," It is "Actual knowledge by the party of the very matter or thing, of which he is said to have notice," "It consists in express information of the fact." It is "knowledge brought directly home to the party." "However closely actual notice may be in many instances approximate knowledge, thee may be actual notice without knowledge." [See 29 Ame.Cyc.1113]
109. Constructive Notice, defines "Legal inference from established facts." "Notice imputed by the law to a person not having actual notice." "Knowledge of any fact which would put a prudent man upon inquiry." "Knowledge of such facts as should induce inquiry, and as would lead to injury in the case of an ordinarily prudent man and which cannot be neglected without a voluntary closing of the eyes, and conduct inconsistent with good faith."
110. Notice, in its legal sense, may be defined as "information concerning a fact actually communicated to a party by an authorised person, or actually derived by him from a proper source, or else presumed by law to have been acquired by him, which information is regarded as equivalent to knowledge in its legal consequences. [13 All 171 : 30 B. 275]
111. The adherence to principles of natural justice as recognised by all civilised States is of supreme importance when a quasi-judicial body embarks on determining disputes between the parties. These principles are well settled. The first and foremost principle is what is commonly known as audi alteram partem rule. It says that no one should be condemned unheard. Notice is the first limb of this principle. It must be precise and unambiguous. It should apprise the party determinately the case he has to meet. Time given of the purpose should be adequate so as to enable him to make his representation. In the absence of a notice of the kind and such reasonable opportunity the order passed againt the person in absentia becomes wholly vitiated. Thus it is but essential that a party should be put on Notice of the case before any adverse order is passed against him. This is one of the most important principles of natural justice. It is after all an approved rule of fairplay. Another principle of natural justice is popularly known as rule against bias. A third one is that the party when requested should be given a copy of the order passed against him, containing the reasons for the adverse order. [Hurhanuddin Hussain v. State of U.P., AIR 1970 AP 137]
112. The word "Notice" means intimation, information, cognizance or observance, "notice" implies knowledge and this knowledge comes from direct perception or from inference reasonably arising out of several facts and circumstances. [Manick Lal Seal v. K.P.Choudhary, AIR 1976 Cal. 115]
113. The word 'Notice' means intimation annoncement, information, warning, cognizance, observation, "Notice" implies knowledge and this knowledge may come from direct perception or from inference reasonably arising out of several facts and circumstances which are manifest on plaint averments. [Kanchanbai v. Khetidas, (1991) 1 Civil LJ 553]
114. 'Notice' is originated from Latin word 'notifia' which means 'a being know', knowing is wide enough in legal circle to include plaint filed in suit, notice in its legal sense, is, information concerning fact actually communicated to party by authorised person or actually derived by him from proper sources or else presumed by law to have been acquired by him, which information is regarded as equivalent to knowledge in its legal consequences. [Commissioner of Sales Tax & Ors., v. Subhash & Co., AIR 2003 SC 1623 = 2003 (3) SCC 454]
115. A notice, calling upon explanation or objection, is given, to arrive at a conclusion on facts. The purpose of issuing a show cause notice is to afford an opportunity to call for objections/reply to the action proposed to be taken by the authority. No man should be condemned unheard. On receipt of the objections/reply, the authority has to consider and take a decision. There should be fairness and reasonableness and to prevent miscarriage of justice. Principles of natural justice is no more a straitjacket formula. It depends upon the subject matter and rests on the provisions. There must have been real prejudice to the one, who propounds violation and it has to be adjudged on the facts and circumstances of each case. The Court has to consider, whether there has been fairness and whether the decision could be arrived at in a just and objective manner, with relevance to the material on record. The Court has to see whether any actual prejudice has been caused to a person by the supposed denial of a particular right. Judged in the light of the principles of law, enunciated by the Apex Court, in the case on hand, the prayer to issue fresh notice and an opportunity to be given would squarely fall within the Doctrine of "Useless formality". In the light of the principles of law and judged from the facts and circumstances, this Court sees that no prejudice has been caused to the petitioner and therefore, there is no violation of principles of natural justice.
116. As per the Board Standing Order 15(1-A)(i), grant of land by the Government in the form of assignment, alienation, lease, etc., is governed by the provisions of the Government Grants Act (Central Act). According to the provisions in the Government Grant Act, grant of Government land will not be governed by the provisions of the Transfer of Property Act, unless specific provisions are made in the order of grant by the Government that the title to the property will pass on to the assignee subject to complying with the conditions of grant or after the expiry of a certain period. The grantee of the land, therefore, does not acquire title, simply under the orders of grant of land by the Government.
117. The Government Grants Act, 1895, (15 of 1895), is an Act, to explain the Transfer of Property Act,1882, insofar as it relates to grants from the "Government" and to remove certain doubts as to the powers of the "Government" in relation to such grants. The Act reads as follows:-
Whereas doubts have arisen as to the extent and operation of the Transfer of Property Act, 1882, and as to the power of the "Government" to impose limitations and restrictions upon grants and other transfers of land made by it or under its authority, and it is expedient to remove such doubts; It is hereby enacted as follows.
118. Section 2 of the Act states that Transfer of Property Act, 1882, not to apply to Government grants and which reads as follows:-
"Nothing in the Transfer of Property Act, 1882, contained shall apply or be deemed ever to have applied to any grant or other transfer of land or of any interest therein heretofore made or hereafter to be made by or on behalf of the "Government" to, or in favour of any person whomsoever; but every such grant and transfer shall be construed and take effect as if the said Act had not been passed.
119. As per Section 3 of the "Government" Grants Act, 1895, (15 of 1895), Government grants to take effect according to their tenor. It states that all provisions, restrictions, conditions and limitations over contained in any such grant or transfer as aforesaid shall be valid and take effect according to their tenor, any rule of law, statute or enactments of the Legislature to the contrary notwithstanding.
120. It is a settled proposition of law that Section 3 of the "Government" Grants Act, 1895, (15 of 1895), has overriding effect according to their tenor. Any restrictions, conditions and limitations contained in the Government grant or transfer shall continue to be effective insofar as the Government grants are concerned, inspite of the provisions in the Transfer of Property Act. In the instant case, the Government grants partakes the character of law. The scope of Section 3 of the "Government" Grants Act, 1895, (15 of 1895), is that it states all the prohibitions, restrictions, conditions, and limitations which would otherwise be bad under the Transfer of Property Act. The Government grant is regulated by the terms contained in it and the revenue code, respective provisions of the Transfer of Property Act or any other law.
121. In State of U.P. v. Zahoor Ahmad reported in 1973 (2) SCC 547, the meaning of Sections 2 and 3 of the Government Grants Act is that the scope of that Act is not limited to affecting the provisions of the Transfer of Property Act only. The Government has unfettered discretion to impose any conditions, limitations, or restrictions in its grants, and the rights, privileges and obligations of the grantee would be regulated according to the terms of the grant, notwithstanding any provisions of any statutory or common law.
122. In a recent decision of the Supreme Court in Pradeep Oil Corporation Vs. Municipal Corporation of Delhi and another, reported in 2011 (5) SCC 270, reaffirming the law on the subject of overriding effect of Government grant, at paragraph 19, held as follows:-
The Government Grants Act, 1895, being a special statute would prevail over the general statute i.e., the Transfer of Property Act, 1882. Accordingly, the rights and obligations of the parties in the present case, would be governed by the terms of the provisions of the Government Grants Act, 1895, whereunder the Government is entitled to impose limitations and restrictions upon the grants and other transfers made by it or under its authority.
123. From the above judgments, even the assignee cannot question the terms and conditions of the assignment made. As stated supra, when the alienation itself is contrary to the conditions of grant and revenue code, opposed to public policy and the constitutional provisions, as held by the Supreme Court, the petitioner who claims to have acquired a derivative title through the purchaser of the assignee, has no legal or statutory right to contend that the conditions imposed in the assignment cannot be enforced against him. When the assignee himself has no legal right to question the conditions of grant, the subsequent purchaser cannot be permitted to contend that he has a better or an absolute right, simply because, he has purchased a land, which is inalienable to third parties. If such a plea is entertained, then the powers of the authorities to cancel the assignment and resume the land, in the case of contravention of the conditions of grant or the Revenue Code, as the case may be, or both, would be curtailed by the Courts and that would be opposed to public policy and defeat the very object of assignment. Then every purchaser, who does not belong to Scheduled Caste community, and acquires such lands, would enjoy the fruits of the assignment, not intended to be made to them. No writ can be issued preventing the authorities from exercising their statutory and public duties. The petitioner has no independent right under the provisions of the Government Grants Act, conditions of assignment or the revenue code, to assail the order of cancellation.
124. On the aspect of entries made in the "A" register and continuous possession, the moment the cancellation has been cancelled, entries have to be made in the "A" register. The contention that the entries in the register show that the land has been classified as Ryat and thereafter as Tharisu and therefore the lands can longer be classified as DC land cannot be countenanced, for the reason that what is called upon to adjudicate is whether the conditions of grant or the Revenue Code have been violated by the assignee, warranting cancellation of the assignment and that the revenue code is clear on the aspect that once the assignment is cancelled, then they should be reverted as Government lands.
125. Even as per the petitioner's averments made in the supporting additional affidavit, the land was originally classified as "Tharisu" and therefore, after cancellation of the assignment, it has been reverted to its original position as "Tharisu" and thus become Government lands. It should be noted that lands described as "Tharisu' or Government lands or lands, exclusively reserved for assignment to Scheduled Castes, are assigned to the members of the depressed class. It cannot be contended that the lands reserved for Scheduled Caste alone can be assigned and not other kinds of lands. Once it is assigned to a member of the Scheduled Caste, it becomes reserved and in the light of the conditions of grant and the legal pronouncements of the Supreme Court, it is meant to be permanently possessed and enjoyed by a member of such community only, and alienation to others is not permissible.
126. "A" Register produced before this Court shows that the entries have been made stating that there has been a contravention of the conditions of grant. Notice has been given to the petitioner before passing orders of cancellation of assignment. Files also disclose that notice has been given to vacate. Any information obtained by the petitioner, under the Right to Information Act, cannot change the character of the land. Lands have been assigned to depressed classes and that there are entries in the Land Register of Thiruvannamalai Town. Any government land can be assigned to the depressed class, subject to the satisfaction of the requirements, stated supra under the Revenue Code (Board Standing Orders). The land as such need not be classified as DC land. In the Board Standing Order, there is no such classification. Hence, the contention to the contrary is rejected. The plea of adverse possession cannot be entertained, when the petitioner has claimed a derivative title through the purchaser of the assignee. Pandiyan Re-rolling Mill, the petitioner's vendor, is stated to have purchased the subject lands from the legal heir of Subburaya Pandaram. But the petitioner, who claims to have purchased the subject lands from "Pandiyan Re-rolling Mills" in para 2 of the supporting affidavit, quiet conveniently, has failed to mention even the date of purchase of the lands from the said Mill. It is also to be noted in the main affidavit, the petitioner claims to have purchased the property from Pandiyan Re-rolling Mills, whereas, in the additional affidavit, he would contend that the said land was sold to one Pandian Commercial Finance Corporation, in the year 1972, by sale deed, dated 03.02.1972, which name was subsequently changed as VDSR Re-Rolling Mill. But the fact remains that a notice, dated 09.08.1984, calling for an explanation has been issued to the petitioner and since then, the dispute is pending. Even the plea of adverse possession against the State cannot be sustained, in view of the judgment of the Supreme Court in R.Chandevarappa & Others v. State of Karnataka reported in 1995 (6) SCC 309.
127. In W.P.No.10277/94 and Second Appeal No.611/1998, dated 24.08.2005, the cancellation of the assignment was on account of fraud and misrepresentation committed by the petitioner, in getting the assignment. Suppressing the fact that he was a government servant, the petitioner therein, had obtained the assignment. As the said act squarely fall within the parameters of G.O., the assignment has been cancelled. But as per G.O.Ms.No.2555, Revenue Department, dated 14.05.1973, this Court has observed that the cancellation should have done within three years from the date of assignment. In such circumstances, this Court has interfered with the impugned order. In my humble view, the judgment cannot be applied to a case of contravention of the conditions of assignment or Revenue Code.
128. The judgment in W.P.No.10277/94 and Second Appeal No.611/1998, dated 24.08.2005, is also not applicable to the case on hand, since the petitioner himself has come forward to accept the jurisdiction of the Special Commissioner and Commissioner for Land Administration in cancelling the assignment. On the facts and circumstances of the case, the decision in Manohar Lal v. Ugrasen reported in 2010 (11) SCC 557, would not lend any support to this case.
129. Perusal of the files produced by the learned Additional Government Pleader indicates that prompt action has not been taken by some of the officers, who have dealt with the files. In matters of assessment and cancellation for contravention of the condition of grant and the Revenue Code, if appropriate and prompt action is not taken, then the authorities would in a way, delay the objectives, sought to be achieved under the Constitution of India. Series of correspondence between the officials indicate that for years together, the original file pertaining to the assignment itself, was not retrived and the petitioner himself has pointed out the same. At this juncture, this Court deems it fit to issue a direction to the Secretary to the Government, Revenue Department, Chennai, who shall issue suitable directions to ensure, retention of the files in all matters, pertaining to land transaction.
130. Before parting with the case, the Division Bench of this Court in VGP, Prem Nagar's case (cited supra), has taken judicial notice of the grievances of the weaker sections of the society that large extent of lands assigned to weaker sections of the society are in possession and enjoyment of others, by virtue of the alienation made by the assignees either due to economic exploitation or due to any other reason, which do not fall within the parameters, stated in the revenue code or the conditions of grant, despite the embargo on such alienation. When the existence of the provisions in the revenue standing orders has not produced the desired effect of safeguarding, protecting and improving the economic conditions of the weaker sections of the society, it is high time that the Government to bring about necessary enactment. At this juncture, it is to be noted that when such enactments namely, Andhra Pradesh Assigned Lands (Prohibition on Transfers) Act, 1977, Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 and Maharashtra Restoration of Lands to Scheduled Tribes Act, 1974 have been enacted in other states long back, State of Tamil Nadu, is yet to come out with such an enactment. It cannot be said that such cases of contravention of the conditions of grant, deprivation of the lands assigned to weaker sections of the society have not caused detriment to the interests of the poor and weaker sections. It also cannot be said that such violations are infinitesimal. Though there is some sensitization and awareness created among the weaker sections of the society by certain action groups and activists and the members of the said community have also requested the Government to make suitable enactment on the subject, as done in other states and there has been a long demand for effective legislation on the subject to protect the interests of the weaker sections of the society, for whose benefits, lands have been assigned, the Government have not come forward with any legislation. When alienations contrary to the object of the assignment have been declared in so many cases by the Supreme Court as opposed to public policy and violative of the constitutional objectives, the question arises for consideration as to whether such alienations can be allowed to continue in force, perpetuating illegality. Unless appropriate steps are taken in consonance with the judgments of the Supreme Court and Articles 14, 21, 38, 38(b) and 46 of the Constitution of India, then the provisions in the revenue code and the conditions of assignment, would be only academic.
131. At this juncture, it is also to be noted that visualising the prolonged legal proceedings in resumption of possession of the assigned land vis-a-vis, the prejudice which would be caused to the interests of the members of the weaker sections of the society, the Supreme Court has observed that the lands should be recovered through the process of law. A member of the scheduled caste community has a right to hold the property assigned to them under the provisions of the revenue code.
132. When there are laws to prevent and penalise those who enrich themselves, acquiring or unlawfully encroaching upon lands, which contain natural resources and minerals etc., it is not known as to why there is no such enactment for the welfare of the weaker sections of the society. When importance is given to things or materials, which do not have life, it is not known, as to why, there should not be any enactment for the weaker sections of the society. When materials are given due importance, why not men, who deserve constitutional protection. In the light of the principles, contained in the Preamble and other Constitutional provisions, the legitimate expectation of the weaker sections, has to be fulfilled.
133. Right to life and to live with dignity is a most cherished and valuable right in the constitution. If a person is in unauthorised occupation of land belonging to Government or local body, and such encroachers are sought to be removed, there should not be any discrimination or injustice to a member of the weaker sections of the society, in whose lands, others are now in possession and enjoyment. If they have been deprived of the land by economic exploitation or ignorance, poverty etc., the land assigned to them should be resumed, by taking appropriate and prompt action, and provisions for such action are already available in the Revenue Code. They have to be resumed for reallotment to the depressed and weaker sections of the society. In the case of transfer of considerable areas of poramboke or unassessed land to assessed, particular care should be taken that the present and prospective needs of the scheduled castes are considered. Though the State of Tamil Nadu has been the role model for other States in achieving social justice, and for removing inequalities, many enactments have been made, no law on this subject has been enacted. No one should forget that this is a land of great reformers that like, Thanthai Periyar, Kamarajar.
134. In the light of the constitutional provisions, the Government should take appropriate steps and measures to effectuate the constitutional goals. For the reasons stated supra and in the light of the law laid down by the Apex Court, judgments of the Division Bench of this Court, this Court is of the view that the petitioner has no made out a case for interference. Hence, these writ petitions are dismissed. Interim order is vacated. It is open to the respondents to take appropriate action. No costs.
nb/skm Note to Office:
Registry is directed to send a copy of this order to the Secretary to Government, Revenue Department, Secretariat, Chennai-9, for appropriate action.
To The Special Commissioner and Commissioner of Land Administration Ezhilagam Madras