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Advocates
  • For the Appellant: A.S. Vishwanath, B.P. Holla, M.R. Sathyakumari, Advocates.
Judges
  • M.L Pendse, C.J
  • B. Padmaraj, J.
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Citation Codes
Equivalent Citations
citation codes
Case Number
Advocates
  • For the Appellant: A.S. Vishwanath, B.P. Holla, M.R. Sathyakumari, Advocates.
Judges
  • M.L Pendse, C.J
  • B. Padmaraj, J.
Acts
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Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

In 1940 an area of 2 acres (out of Survey No. 53/4) in Kamasagara village, Channagiri Taluk, Shimoga District, was granted by the Competent Authority to the late husband of respondent 3. A Saguvali Chit (grant certificate) was issued on April 17, 1940, under the Mysore Land Grant Rules. The grant contained conditions, the principal one being that the grantee shall not alienate the land at any time; the Government retained a right to resume the land on breach.

Notwithstanding that condition, the grantee sold the land by registered deed dated May 31, 1957 to the appellant's father. The appellant's father, and subsequently the appellant, remained in possession from the date of sale.

The Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 (the Act) came into force on January 1, 1979. Under Sections 4 and 5 of the Act transfers in contravention of the terms of grant are void and the Assistant Commissioner may take possession and restore such land to the original grantee or his legal heir.

Pursuant to these provisions, respondent 3 applied for resumption. The Assistant Commissioner, Shimoga Sub-division, by order dated October 25, 1980, directed resumption and dispossession of the appellant. The appellant's appeal to the Special Deputy Commissioner was dismissed on June 27, 1986. A writ petition under Articles 226 and 227 was dismissed by the Single Judge on September 3, 1991, which held that the 1940 rule prohibiting alienation rendered the 1957 sale void. That Single Judge decision was under challenge before the court in this opinion.

Legal Issues Presented

  1. Whether the condition of permanent non-alienability annexed to the 1940 grant offends Article 19(1)(f) of the Constitution, and if so whether the sale of 31 May 1957 can be upheld.
  2. Whether subsequent notifications of 4 August 1953 and 18 January 1956 (which limited prohibition to fixed periods) operate retrospectively to validate transfers of grants made prior to those notifications (specifically, grants made in 1940).
  3. Whether the condition of non-alienability can be severed from the grant — i.e., whether the Court may uphold the grant but strike down the condition as unconstitutional.
  4. Whether the transferee (appellant) can succeed by establishing title by adverse possession and, if so, what is the relevant period to be proved (in light of the nature of the grant and the commencement date of the Act).

Arguments of the Parties

Appellant's Arguments

  • The permanent prohibition against alienation prescribed by the Mysore Land Revenue Code rules (existing on April 17, 1940) violated Article 19(1)(f) — the fundamental right to acquire, hold and dispose of property — and therefore the condition was unenforceable.
  • Because Article 19(1)(f) was available on the date of sale (May 31, 1957), the grantee legitimately disposed of the land; alternatively, the condition should be declared void under Article 13 as inconsistent with fundamental rights.
  • Notifications dated 4 August 1953 and 18 January 1956 amended the rules to limit inalienability to fixed periods (20 years, then 15/10 years), and those amended rules should apply to the present case to validate the 1957 transfer.
  • Even if the transfer were void, the appellant could retain possession by proving title through adverse possession; the appellant contended this point was not adequately considered by the Assistant Commissioner and that procedural limitations before the Assistant Commissioner prevented a full hearing.

The opinion does not contain a detailed listing of respondent 3's specific counsel arguments; the procedural steps taken by respondent 3 (application under Sections 4 and 5 of the Act) are recorded.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Manchegowda v. State of Karnataka (1984 2 Kar. L.J. 1 SC) Observation (paragraph 17) that a prohibition on transfer does not offend Article 19(1)(f) where the prohibition is for a definite duration rather than indefinite/perpetual. The court considered the decision but explained that the precise question whether a perpetual prohibition would offend Article 19(1)(f) did not arise in Manchegowda; the court relied on subsequent authority for the proposition that perpetual prohibition may be valid when serving the constitutional policy of economic empowerment.
Chandevarappa v. State of Karnataka (JT 1995 7 SC 93) Held that prohibition from alienation effectuates constitutional policy of economic empowerment under Articles 14, 21, 38, 39, 46 and the Preamble; the object is to have grantees personally cultivate and retain land for successive generations. The court relied on this decision to reject the appellant's contention that a prohibition in perpetuity necessarily offends Article 19(1)(f), concluding that a perpetual prohibition can be valid to realize constitutional policy.
Sunkara Rajyalakshmi v. State of Karnataka (ILR 1987 KAR 2076) Principles concerning a transferee's ability to establish adverse possession to come out of the operation of Sections 4 and 5 of the Act, and that such contentions should be raised at the earliest and before the first authority. The court applied these principles to direct that the Assistant Commissioner ascertain the nature of the grant (paid/gratuitous) and decide whether the appellant or predecessor perfected title by adverse possession in the required period before January 1, 1979.

Court's Reasoning and Analysis

The court proceeded in several analytical steps, each grounded in the facts and applicable law as set out in the opinion:

  1. On the validity of the non-alienation condition: the court held that the grant was made to a member of a Scheduled Caste with the express object that the grantee himself would enjoy and cultivate the land. The historical context — poverty, lack of education and resulting exploitation of SC/ST grantees — justified a protective rule preventing transfers. Consequently, the imposition of a permanent prohibition on alienation as a condition of the grant was not an unreasonable restriction on the grantee's rights and was "perfectly valid and legal."
  2. On Article 19(1)(f) and Article 13 challenges: the court rejected the appellant's contention that the rule prescribing permanent non-alienability violated Article 19(1)(f) and that Article 13 rendered the rule void as inconsistent with Part III. The court emphasized the nature and purpose of grants to SC/ST persons and found that the condition did not constitute an unconstitutional deprivation.
  3. On the effect of the 1953 and 1956 notifications: the court held that those notifications (which limited prohibition periods) are prospective and apply only to grants made after those notifications. Therefore they do not apply to the 1940 grant, and the 1957 sale cannot be validated by invoking those later notifications.
  4. On severability of the condition from the grant: the court rejected the argument that the grant could be upheld while the condition struck down. The condition was treated as an indivisible part of the grant as issued under the rules; having accepted the grant subject to the condition, the grantee cannot later sever or attack that condition.
  5. On adverse possession: the court accepted the established principle (from the cited authorities) that a transferee can avoid the operation of Sections 4 and 5 of the Act by proving adverse possession for the requisite statutory period prior to the Act coming into force (January 1, 1979). The court summarized the periods required: where the grant was for an upset value or market price, the transferee must show adverse possession for 12 years before the Act; where the grant was a free grant, 30 years is required. The court noted procedural deficiencies in earlier proceedings (confusion by the Deputy Commissioner and failure to consider the adverse possession contention) and therefore remitted the matter.
  6. Scope of remand: the court directed that on remand the Assistant Commissioner is to examine only the issue of adverse possession and the nature of the grant (to determine which limitation period applies). All other contentions were held concluded by the court and are not to be reopened on remand.

Holding and Implications

Holding:

THE APPEAL IS ALLOWED; the orders dated October 25, 1980 (Assistant Commissioner), June 27, 1986 (Special Deputy Commissioner), and the Single Judge's judgment dated September 3, 1991 are set aside, and the proceedings are remitted to the Assistant Commissioner, Shimoga Sub-division, Shimoga.

The court directed that on remand the Assistant Commissioner shall determine only whether the appellant (or his predecessor) perfected title by adverse possession prior to January 1, 1979, after first ascertaining the nature of the grant (whether free grant or grant for an upset/market price), and dispose of the matter as early as possible. The court made clear that all other contentions remain concluded and shall not be reexamined on remand.

Implications:

  • The court upheld the validity of the non-alienation condition attached to the 1940 grant and rejected the contention that it offended Article 19(1)(f) or Article 13 as applied to that grant.
  • The 1953 and 1956 amendments limiting the period of inalienability were held prospective and do not validate transfers of grants made before those notifications.
  • The transferee retains a limited procedural remedy: the ability to defeat the operation of Sections 4 and 5 of the Act by establishing adverse possession for the statutory period appropriate to the nature of the grant (12 years for grants for consideration; 30 years for free grants), measured prior to January 1, 1979.
  • No broader change in precedent was declared by this opinion; the direct effect is to remit the case for limited factual and legal determination on adverse possession, with all other challenges dismissed. The court ordered no costs.

The summary above is prepared strictly on the basis of the information contained in the provided opinion. No facts, arguments, or holdings beyond those expressly stated in the opinion have been added.

Show full summary ...

    Rudrappa v. Special Deputy Commissioner, Shimoga And Others

    1. An area of 2 acres of agricultural land out of Survey No. 53/4 in the village, Kamasagara in Channagiri Taluk of Shimoga District, was granted by the Competent Authority in favour of the late husband of respondent 3. The Saguvali Chit, which is in the nature of Grant Certificate, was issued in favour of the grantee on April 17, 1940, in accordance with the Mysore Land Grant Rules. The grant was subject to certain conditions and the principal condition was that the grantee shall not alienate the land at any time. The Government had a right to resume the land in case the grantee committed any breach of the conditions. In spite of the condition of non-alienability, the grantee sold the land to the appellant's father by registered sale deed dated May 31, 1957. It is not in dispute that the appellant's father and after his demise, the appellant, continued to remain in possession from the date of sale.

    2. The Government of Karnataka enacted the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 (for short “the Act”), to provide for the prohibition of transfer of certain lands granted by the Government to persons belonging to the Scheduled Castes and Scheduled Tribes in the State. The Act came into force from January 1, 1979. Section 4 of the Act, inter alia, provides that notwithstanding anything in any law, agreement, contract or 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, shall be null and void. The expression “granted land” is defined under Section 3(b) and means any land granted by the Government to a person belonging to any of the Scheduled Castes or the Scheduled Tribes. Section 5 of the Act, inter alia, provides that the Assistant Commissioner, if satisfied that the transfer of any granted land is null and void under Section 4, may take possession of such land after evicting all persons in possession thereof and restore such land to the original grantee or his legal heir. In pursuance of the provisions of Sections 4 and 5 of the Act, respondent 3 approached the Assistant Commissioner for resumption of the land. The Assistant Commissioner, Shimoga Sub-division, Shimoga, by order dated October 25, 1980, directed that the land should be resumed by the Government by dispossessing the appellant and possession should be restored to respondent 3. The appellant carried appeal before the Special Deputy Commissioner, Shimoga, but, the appeal ended in dismissal by order dated June 27, 1986. The appellant then preferred writ petition under Articles 226 and 227 of the Constitution before the learned Single Judge, but, the petition ended in dismissal by the impugned judgment dated September 3, 1991. The learned Single Judge held that the rules prevalent on the date of the grant, that is, April 17, 1940, prohibited the grantee from alienating the land at any time and consequently, the Sale Deed in favour of the appellant's father was void as it is in breach of the terms of the grant. The decision of the learned Single Judge is under challenge.

    3. The learned Counsel for the appellant submitted that the permanent prohibition prescribed by rules framed under the Mysore Land Revenue Code and prevalent on April 17, 1940, when the Grant Certificate was issued in favour of the husband of respondent 3, was violative of Article 19(1)(f) of the Constitution. It was contended that Article 19(1)(f) of the Constitution provided till its repeal, that all citizens shall have the right to acquire, hold and dispose of property. It was contended that on the date of the sale in favour of the appellant's father, that is, on May 31, 1957, the fundamental right guaranteed under Article 19(1)(f) was available and it was open for the grantee to not only hold the land, but also to dispose of the same and consequently, the prohibition to alienate prescribed under the rules framed under the Mysore Land Revenue Code was unenforceable. The learned Counsel referred to the provisions of Article 13 of the Constitution to urge that all laws in force in the territory of India immediately before the commencement of the Constitution insofar as they are inconsistent with the provisions of Part-III, shall, to the extent of such inconsistency, be void. The submission is that the rule, which prescribed that the land granted cannot be alienated at any time in future, deprives to the grantee of the fundamental right to dispose of the property. It is not possible to accede to the submission of the learned Counsel. The grant in favour of the Members of a Scheduled Caste was made by the Government with an object that the grantee himself would enjoy the land. Experience had shown that persons belonging to Scheduled Castes and Scheduled Tribes, to whom the lands were granted, were, because of their poverty, lack of education and general backwardness, exploited by various persons who could and would take advantage of the said plight of these persons for depriving them of their lands. The rules were framed under the Mysore Land Revenue Code with the object that the grantees will not transfer the lands and are not exploited by persons having better financial position. The imposition of the condition of prohibition on transfer could not, therefore, be considered to constitute any unreasonable restriction on the right of the grantees to dispose of the granted lands. The imposition of such a condition in the very nature of the grant was perfectly valid and legal. The grant cannot be equated to the sale of the property by the Government and the grant was made with a particular object that the grantee would personally cultivate that land and enjoy the fruits to come up in life. The object of the grant cannot be defeated by permitting transfers and therefore, in our judgment, it is futile to suggest that the condition prescribed for prohibition from alienation was in breach of the fundamental right guaranteed under Article 19(1)(f) of the Constitution. The contention of the learned Counsel that the condition should be declared as void in view of the provisions of Article 13(1) of the Constitution, therefore, cannot be accepted.

    4. It was then contended by the learned Counsel that by Notification dated August 4, 1953, issued in exercise of powers conferred by Section 233 of the Mysore Land Revenue Code, the Government of Mysore amended the rules and prescribed that the lands granted shall not be alienated for a period of 20 years from the date of the grant. The rules were further amended on January 18, 1956, and the period was reduced from 20 years to 15 years and 10 years depending upon the nature of the grant. Relying on this notification, it was contended that the initial rule prescribing total inalienability of the granted lands was watered down to the period of 15 years and 10 years and therefore the transfer effected by the grantee on May 31, 1957, should be treated as valid and legal. It is not possible to accede to the submission of the learned Counsel. It has been repeatedly held by this Court that the Notifications of the years 1953 and 1956 are prospective in nature and would apply only to those grants which were issued after the date of the notification and not to the grants which were made prior to the amendment of the rules. It is, therefore, futile to suggest that the prohibition from alienation for a duration of 15 years or 10 years, as the case may be, would be also applicable to the grants made in the year 1940.

    5. The learned Counsel referred to the decision of the Supreme Court in Manchegowda v. State of Karnataka . 1984 2 Kar. L.J 1 SC, and especially on the observations in paragraph 17 of the judgment, to contend that the Supreme Court upheld the validity of the rule by holding that the rule does not offend the provisions of Article 19(1)(f) of the Constitution as the prohibition on transfer was not for an indefinite period or perpetual, but only for a certain duration. It was urged that the decision of the Supreme Court indicates that in case the prohibition was not for a particular period but for an indefinite period, then it might offend the fundamental right under Article 19(1)(f) of the Constitution. It is not possible to accede to the submission of the learned Counsel. The question as to whether the prohibition for an indefinite period or in perpetuity would attract the bar of Article 19(1)(f) of the Constitution, did not arise for consideration. Indeed, the question arose for determination of the Supreme Court in the later decision in the case of Chandevarappa v. State of Karnataka . JT 1995 7 SC 93.. The Supreme Court observed that 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. The refusal to permit alienation is to effectuate the constitutional policy. The Supreme Court then observed that the object of issuing the grant was that the grantee 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. In view of the decision of the Supreme Court, it is not possible to accede to the contention that the prohibition to alienate in perpetuity cannot be held to be valid and offends the fundamental right under Article 19(1)(f) of the Constitution.

    6. There is another aspect of the matter which cannot be overlooked. The grantee accepted the possession of the land with conditions under which the grant was issued. It is not open for the grantee to challenge the validity of the condition and which is the basis of the grant. The learned Counsel for the appellant submitted that it is always open for the grantee to claim that though the grant is valid, the condition is invalid as it violates the fundamental right. It was contended that it is open for the Court to uphold the grant and strike off the condition which is offending the provisions of the Constitution. In our judgment, it is not possible to split up the condition of prohibition to alienate from the grant as the condition was an indivisible condition and which was prescribed by the rules framed under the Mysore Land Revenue Code. The grantee having accepted the grant subject to the condition, cannot complain about the validity of the condition.

    7. The learned Counsel for the appellant then submitted that even if the grant was on the condition of permanent non-alienation and even if the transfer in favour of the appellant's father was void, still the appellant can retain possession, by relying upon the claim that the transferee has perfected title by adverse possession. The learned Counsel submitted that as held by the Supreme Court in the case of Sunkara Rajyalakshmi v. State of Karnataka . ILR 1987 KAR 2076., it is necessary for the transferee to raise such contention at the earliest and before the first Authority. It was urged that the rules or proceedings before the Assistant Commissioner who is the initial Authority, did not permit lawyers to represent parties and on many occasions, the parties were not permitted to put forward all their contentions. It was submitted that though the appellant raised the contention about the adverse possession before the Assistant Commissioner, the same was not referred to or considered in the order passed. The contention of the learned Counsel deserves acceptance because before the Special Deputy Commissioner where the appeal was carried by the appellant, it was specifically contended that the Assistant Commissioner did not give proper opportunity and failed to consider the contention that the appellant had perfected title by adverse possession. The Deputy Commissioner created mess of the matter by assuming that the suit land was granted in the year 1961 and referred to the Saguvali Chit issued in the year 1965-1966. It is obvious that the Deputy Commissioner mixed up the facts of some other case with the facts of the case on hand and then recorded a finding that the appellant purchased the land on September 27, 1966, and the transaction was void. The learned Single Judge noticed the confusion created by the Deputy Commissioner, but did not address to the issue of adverse possession. In these circumstances, it was contended on behalf of the appellant that the appellant was deprived of an opportunity to establish the claim of adverse possession by all the Authorities and, therefore, the matter should be remitted to the Assistant Commissioner to record a finding as to whether the appellant had perfected title by adverse possession on the date when the Act came into force, that is, January 1, 1979.

    8. It is true as held by the Supreme Court in the decisions in Manchegowda's case, supra and Sunkara Rajyalakshmi's case, supra, that it is open for the transferee to establish adverse possession to come out of the clutches of Sections 4 and 5 of the Act. The Supreme Court held that the transferee must establish adverse possession for a duration of 12 years prior to the date of the Act coming into force, provided the grant was for an upset value or a market price. The transferee is required to establish adverse possession for a duration of 30 years prior to the date of the Act coming into force in case the grant was a free grant. It is, therefore, necessary for the Assistant Commissioner to ascertain what was the nature of the grant in favour of the late husband of respondent 3 and thereafter record a finding as to whether the appellant and his predecessor had perfected title by adverse possession. The Assistant Commissioner will examine only the issue of adverse possession and no other contention. It is made clear that all other contentions stand concluded and the matter is remitted back to determine only the issue of adverse possession. The Assistant Commissioner is directed to dispose of the matter on remand as early as possible. Accordingly, the appeal is allowed, order dated October 25, 1980, passed by the Assistant Commissioner, Shimoga, in Case No. RRC. KR. 808/79, decision dated June 27, 1986, by the Special Deputy Commissioner, Shimoga, in Case No. SC/ST/246/84-85 and judgment dated September 3, 1991, by the learned Single Judge in Writ Petition No. 15536 of 1986 are set aside and the proceedings are remitted back to the Assistant Commissioner, Shimoga Sub-division, Shimoga, for adjudication as directed hereinabove. The Assistant Commissioner shall dispose of the proceedings as early as possible.

    9. In the circumstances of the case, there will be no order as to costs.

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    Comments

    Rudrappa v. Special Deputy Commissioner, Shimoga And Others
    (Nov 8, 1995)