Karnataka High Court
Yellappa vs Yellavva Kom Subray Gowda on 21 November, 1986
Equivalent citations: ILR1987KAR683
JUDGMENT Rama Jois, J.
The petitioner has presented this petition, aggrieved by the order of the Deputy Commissioner, Uttara Kannada, allowing the appeal of respondent-I and setting aside the order of the Asst. Commissioner, by which he had declared the sale of certain agricultural lands in favour of respondent as invalid.
2. The facts of the case, in brief are as follow: 7 acres 12 guntas of land in block No. 72 (C.S No. 104) of Gadiyal Village in Haliyal Taluk was granted to the petitioner under the Land Grant Rules, by the Asst. Commissioner, Karwar, dated 25-5-1959 on the ground that the petitioner belongs to scheduled caste. There was also a non alienation clause attached to the grant. The condition was that the petitioner should not sell the land granted to him within a period of 15 years from the date of grant. The land so granted to the petitioner in the year 1959 was sold in auction on 5-6-1968 by the Asst. Commissioner for recovering the takavi loan taken by the petitioner from the Government. Respondent-1 purchased the land in the auction held by the Asst. Commissioner for recovering the loan due from petitioner. After the coming into force of the Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act of 1978, (for short 'the Act') the petitioner made an application before the Asst. Commissioner, Karwar subdivision, for setting aside the sale in favour of respondent-1. The objection of respondent-1 was that the provisions of the Act ware not attracted for the reason that the sale was by the Government for recovering its dues and therefore, the sale could not be regarded as void under Section 4 of the Act. The objection was rejected by the Assistant Commissioner holding that the sale of the land by the Government was also rendered invalid.
3. Respondent-1 preferred an appeal before the Deputy Commissioner, against the order of the Assistant Commissioner. Respondent-1 contended before the appellate authority that the provisions of Sub-section (3) of Section 4 which provided that sale in execution of a decree or award of any Court or authority also falls within the purview of Sub-section (1) of Section 4, was not attracted to the case for the reason that the sale in the present case was by the Government itself and was not pursuant to any decree or award or order having the force of decree or award made at the instance of any individual. The contention of the petitioner however was that even the sale effected by the Government through the order of the Assistant Commissioner was covered by Sub-section (3) of Section 4 and therefore the Assistant Commissioner was right in declaring the sale invalid.
4. The Deputy Commissioner considered the rival contentions and rejected the contention of the petitioner. The relevant portion of the order reads:
"I have gone through the papers in the file and also the provisions of the Karnataka Scheduled Cases and Scheduled Tribes (Prohibition of Transfer of certain lands) Act, 1978. It is a fact that the said granted land was auctioned as per the order of the Learned Assistant Commissioner, Karwar for recovery of Tagai dues from the petitioner. Section (4) Sub-section (2) of the said Act says 'No person shall, after the commencement of this Act, transfer or acquire by transfer any granted land without the previous permission of the Government; sub-section three of the said Section (4) says that the provisions of Sub-section (1) and (2) shall apply also to the sale of any land in execution of a decree or order of a Civil Court or of any award or order of any other authority. In the instant case the auction is done by (he Government but not by any individual person and that too for recovery of Government does only. Further no where in the said Act it is stated that granted land should not be auctioned for the purpose of recovering the Government dues from the grantee. Thus I inform that there is no bar for such an auction. Even for the sake of argument if it is presumed that such an auction is barred by the Act, then I am afraid, Government has to wave all such dues to be recovered from the grantees or atleast has to stop granting such loans or advances to grantees. In this case even the sale certificate has been confirmed by the learned Assistant Commissioner, Kerwar. The purchaser appellant having assumed the title of ownership of the laid land has invested about 75,000/- Rupees for the improvement of the said land and has also constructed his residence on the said land by spending a huge amount. Thus in view of these facts also it will not be fair to resume the land from the appellant and to hard over the land to the respondent, without paying any compensation to the appellant.
Under the circumstances, I hold that there ie merit in the appeal and the same has to be allowed.
In the result, the appeal is allowed and order of the learned Assistant Commissioner, Karwar, bearing No. LND.CR.SC.ST. 3/79-80 dated 31-8-1984 is hereby set aside."
Aggrieved by the said order, the petitioner has presented this petition. Learned Counsel for the petitioner contended that the sale held pursuant to the order of the Assistant Commissioner also fell within the scope of Section 4(1) of the Act in view of Sub-section (3) of Section 4 and that only sales in favour of the Government were saved in view of Section 7 of the Act.
5. ID order to appreciate the contention it is necessary to sat down the provisions of Sections 4 and 7 of the Act.
"4. Prohibition of transfer of granted lands--(1) Notwithstanding anything in any law, agreement, contract of instrument any transfer of granted land made cither 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 end no right, title or interest in such land shall be conveyed nor 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 previous permission of the Government.
(3) The provisions of subjection (1) and (2) shall apply also to the sale of any land in execution of a decree or order of ft Civil Court or of any award or order of any authority.
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7. Exemption -- Nothing in (his Act shall apply to the transfer of granted lands in favour of the Government, the Central Government, a local authority or a bank either before or after the commencement of this Act."
Under Section 4(1) of the Act, the sale of granted lands by a person belonging to Scheduled Caste or Scheduled Tribe in violation of the condition of grant is declared void. Section 1(3) of the Act makes it applicable to sales of such granted land in execution of a decree or order of a Civil Court or of any award or order of any authority. The above Section came up for interpretation in K.T. Srinivasa v. State of Karnataka W.P. No. 15725 of 1985. In that case the granted land v. as sold by the Government for recovery of Land Revenue. On an interpretation of the provisions of Section 3 it was held that the said provision was applicable to sale or sales of granted lands brought about pursuant to a decree, award or order obtained from the competent authority by a third party to whom any amount was due from the grantee concerned and does not apply to the sale of granted lands brought about by the Government itself. The ratio of the said decision, in my opinion apply to the present case also. In my view, a careful reading of Section 4(3) would show, that it speaks of sales in execution of a decree or award or an order, secured by any private individual or person in respect of the amount due to him. The words 'order of any authority' used in last part of the sub-section must be understood ejusdem generis. So understood, the 'order of any authority' means an order secured from any competent authority which has the force of decree and does not apply to cases in which action to sell the granted land is taken by the grantor Government or any authority to recover the amount due to the Government. In the present case, the sale was held at the instance of the Government - grantor itself acting through the Assistant Commissioner for recovering the amount due to the Government. Therefore, respondent-I who purchased the land pursuant to the sale held by the Government itself, acquired a right to the land and such right is not affected by any of the provisions of the Act. Section 7 of the Act, covers entirely different types of cases, viz., where the land granted to a member of the Scheduled Caste or Scheduled Tribe is purchased by the State Government or Central Government or Local Authority or a Bank. That is an exemption granted under the said provision. But as far as the sale brought about, otherwise than execution of a decree or order having the force of decree secured by any private individual or person at the instance of such decree holder, ie , by the Government itself for recovery of its own dues, it is not covered by Section 4(3) of the Act.
6. In the circumstances, I make the following :-
ORDER Writ Petition is dismissed. No costs