By Shri K. Shivashankar Bhat for Petitioner in W.Ps 7762 and 7943/80.
By Shri H. Subramanya Jois for Petitioner in W.P 7870/80.
By Shri K. Channabasappa and Kadidal Manjappa as intervenor.
By Shri B.S Keshava Iyengar, Advocate General and S. Udayashankar H.C.G.P For Respondents: 4 and 5, in W.P 5516 for R-1 and 2 in W.Ps 5517 to 5520/79, 7762, 7970 and 7943/80.
Chandrashekhar, C.J:—
These petitions under Article 226 of the Constitution, have been referred to a Division Bench.
2. The petitioners are purchasers of lands which had been originally granted by the State to persons belonging to Scheduled Castes and Scheduled Tribes. In these petitions, the petitioners have challenged the constitutional validity of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 (hereinafter referred to as ‘the Act’). In some of these petitions, the petitioners have also impugned the notices issued to them stating that lands alienated in their favour in violation of the conditons of grants of such lands, are null and void under Section 4 of the Act and asking them to show cause why those lands should not be restored to the original grantees or their legal heirs.
3. Before dealing with the contentions arising for consideration in these petitions, it would be useful to briefly refer to the salient provisions of the Act and the Rules made thereunder.
4. The Act received the assent of the President and came into force on 1st January 1979.
5. The preamble to the Act states that the object of the Act is 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 and for restoration of such lands to such persons.
6. Section 2 of the Act contains a declaration that the provisions of the Act are for giving effect to the Policy of the State towards securing the principles laid down in Article 46 of the Constitution.
7. Clauses (b) and (c) of section 3(1) of the Act states that ‘granted land’ means, inter alia, any land granted by the Government of Karnataka to a person belonging to any of the Scheduled Castes or Scheduled Tribes and includes land allotted or granted to such person under the relevant law relating to agrarian reforms or land ceilings or abolition of inams other than that relating to hereditary office or rights.
8. Clause (d) of Section 3(1) states that the expressions ‘Scheduled Castes’ and ‘Scheduled Tribes’ shall have the meanings respectively assigned to them in the Constitution.
9. Clause (e) of Section 3(1) defines ‘transfer’ as a sale, gift, exchange, mortgage (with or without possession), lease or any other transaction not being a partition among members of a family or a testamentary disposition and includes the creation of a charge or an agreement to sell, exchange, mortgage or lease or enter into any other transanction.
10. Sub-section (2) of Section 4 prohibits transfer, or acquisition by transfer, of any granted land except with the previous permission of the Government.
11. sub-section (1) of Section 4 declares that 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) of that Section, shall be null and void and that no right, title or interest in such land shall be conveyed or be deemed ever to have been conveyed by such transfer.
12. Sub-section (3) of section 4 makes the provisions of sub-sections (1) and (2) of that section applicable also to sales of granted land in execution of a decree or order of a Civil Court or any award or order of any other authority.
13. sub-section (1) of Section 5 provides for resumption by the Assistant Commissioner of granted lands on an application by an interested person or on information in writing given by any person or suo moto, after holding an enquiry in which the person affected by resumption shall be given a resonable opportunity of being heard. That sub-section further provides that such lands shall be restored to the original grantees or their legal heirs, that where it is not practicable to restore to them, such lands shall vest in the State free from all encumbrances and that the Government may grant such lands to persons belonging to any Scheduled Castes or Scheduled Tribes in accordance with the rules relating to grant of lands.
14. Sub-section (3) of Section 5 Provides for a presumption, until the contrary is proved, that where any granted land is in possession of a person other than the original grantee or his legal heir, such personal has acquired the land by transfer which is null and void.
15. Section 11 gives the provisions of the Act an over-riding effect over other laws, customs and usages, contracts, decrees and orders of Courts, Tribunals and other authoritieis.
16. Rule 3 of the Rules made under the Act, provides, inter alia, that on receipt of an application or information under sub-section (1) of Section 5 or suo motu, the Assistant Commissioner shall, by a notice, require the person or persons in possession of a granted land to file objections to the claim with documentary evidence, if any, within a reasonable time and that the Assistant Commissioner shall thereafter consider the objections and hear the parties and take possession of such land after evicting the persons in possession thereof in the manner specified in Section 39 of the Karnataka Land Revenue Act, 1964 and take further action as provided in Section 5 of the Act.
17. As the object of the Act and the Rules, is to nullify transfers of lands which had been granted to persons belonging to the Scheduled Castes and Scheduled Tribes, with a condition attached to such grants prohibiting alienation of such lands for certain periods, we shall now set out the relevant provisions under which such lands had been granted to such persons.
18. Grant of lands in the former State of Mysore, was regulated by Rules under the Mysore Land Revenue Code, 1888. Rules 43 and 43A of those Rules, inter alia, provided for grant of lands to persons belonging to Scheduled Castes and Scheduled Tribes. Those Rules continued to be in force even after 1st November 1956 in the new State of Mysore (Karnataka). Grants made thereunder were subject to the condition that the land so granted should not be alienated for a period of 10 years from the date of the grant and that in case such land was alienated within that period, such land might be summarily resumed by the State Government free from all encumbrances and that neither the grantee nor the alienee was entitled to any compensation.
19. In the former State of Madras, grant of lands was governed by the Standing Orders of the Board of Revenue. Para 41 of those Orders, provided inter alia, that assignment of lands to persons belonging to Scheduled Castes or Scheduled Tribes, would be subject to the condition that the lands so granted should not be alienated before the expiry of 10 years from the date of grant. The Board's standing Orders continued to be in force in the Madras Area and Bellary District in the new State of Mysore (Karnataka after 1st November 1956).
20. In the former States of Bombay, Hyderabad and Coorg also similar conditions prohibiting alienation for certain periods, were in the rules regulating grant of lands to persons belonging to Scheduled Castes and Scheduled Tribes.
21. In the year 1960, the Government of the new State of Mysore (now Karnataka) made new sets of ??? under the Mysore Land Revenue Code, 1888; the Bombay Land Revenue Code, 1879; the Hyderabad Land Revenue Code, 1317 Falsi; the Coorg Land and Revenue Regulation, 1899 regulating grant of lands to any persons belonging to Scheduled Castes or Scheduled Tribes. Similar rules were made in respect of the Madras area and Bellary District of the new State of Karnataka. Those Rules were respectively called:
(i) The Mysore Land Revenue (Amendment) Rules, 1960;
(ii) The Bombay Land Revenue (Mysore Amendment) Rules, 1960;
(iii) The Hyderabad Land Revenue (Grant of Land) (Mysore Rules, 1960;
(iv) The Coorg Land Grant Rules, 1960;
(v) Land Grant (Madras Area and Bellary District) Rules, 1960.
For the sake of convenience, the aforesaid Rules will hereinafter be referred to as the Mysore Rules, the Bombay Rules, the Hyderabad Rules, the Coorg Rules and the Madras Rules respectively.
22. Rule 43-G of the Mysore Rules, Rule 37-I of the Bombay Rules, Rule 11 of the Hyderabad Rules, Rule 11 of the Coorg Rules and Rule 11 of the Madras Rules, provided as follows:
“Grant of land under these Rules will be subject to the following conditions:
(1) In the case of grant of lands to applicants belonging to Scheduled Castes and Scheduled Tribes and to other applicants who were unable to pay occupancy price on account of poverty, the occupancy price may be waived upto Rs. 200 and the balance recovered in 3 annual instalments ……………………..
(4) Where the grant of land is free of cost or 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 15 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 permission of the Government and subject to conditions as the Government may specify, if the Government is of the opinion that in the circumstances of any case which is just and reasonable to permit such alienation either for the purpose of acquiring some other land or for any other purpose. ………………………………………………………………..
(7) The grant is liable to be terminated and the land resumed if any of the aforesaid conditions is not fulfilled and on such resumption the land shall vest in the Government free from all encumbrances.”
23. In the, new State of Karnataka, a uniform legislation relating to land and the land revenue administration, was brought about by the Karnataka Land Revenue Act, 1964. Under that Act, the rules called ‘the Karnataka Land Grant Rules, 1969’ were made for the regulating grant of lands. Rule 9 of those Rules sets out the conditions of grant. The relevant parts of Rule 9, read:
9. Conditions of Grant:
(1) The grant of lands under these Rules for agricultural purpose shall be subject to the following conditions:
(i) The grantee shall not alienate the land for a period of 15 years from the date of taking possession, provided that he may, after a period of 5 years, with the previous permission of, and subject to such conditions as may be specified by, the Deputy Commissioner, alienate the whole or any portion of such land. But, however, the Deputy Commissioner shall not grant such permission unless he is satisfied that the alienation is for the purpose of acquiring another land or for improving the remaining land and the grantee pays to the Government the amount equal to 50 per cent of the market value of such land on the date of sanction of such alienation as determined by the Deputy Commissioner …………………………………………..
(v) For contravention of any of the above conditions, the grant shall be liable to be cancelled and resumed to the Government free from all encumbrances by the authority granting the lands.
24. Section 77 of the Karnataka Land Reforms Act, 1961, as amended, provides that 50 per cent of the surplus lands vesting in the State Government under that Act, should be granted to persons belonging to Scheduled Castes and Scheduled Tribes subject to such restrictions and conditions as may be prescribed in this behalf. Condition-19 in the Title Deeds under which surplus lands would be granted to persons belonging to the Scheduled Castes and Scheduled Tribes, was that land granted under such Deeds should not be alienated for 15 years.
25. The reasons for imposing under the Land Grant Rules and other corresponding statutory provisions, such conditions prohibiting or restricting alienation of granted lands by grantees, are not far to seek. Among people belonging to Scheduled Castes and Scheduled Tribes, poverty, ignorance and addiction to drink were so great that they could be easily tempted to alienate for a mess of pottage, valuable lands granted to them to provide a source of livelihood for them. Experience showed that large extents of lands granted to such persons for their upliftment, were purchased by land grabbers for paltry prices. Hence in order to ensure that lands granted to persons belonging to Scheduled Castes and Scheduled Tribes, were retained by them for improvement of their economic condition, it became necessary for the State to prohibit or severely restrict the right of the grantees to alienate granted lands.
26. Section 4 of the Act seeks to make more effective the prohibition against alienation of granted lands contained in the aforesaid Rules. The first part of that Section prohibits future transfers of granted lands. The second part of that Section seeks to invalidate past transfers of such lands, i.e, transfers which had taken place prior to the coming into force of the Act.
27. Besides learned counsel appearing for parties in these writ petitions, several other learned counsel appearing in similar writ petitions, were permitted to intervene and they also addressed arguments regarding the constitutionality of the provisions of the Act.
28. The contentions urged by learned counsel for the petitioners may be formulated thus:
(i) The alienation of granted lands, though prohibited, conferred title to the alienees subject to defeasance of such title if the Government chose to resume such lands;
(ii) The power of the Government to resume granted lands which had been alienated, cannot be exercised after a long lapse of time;
(iii) Sections 4 and 5 of the Act should be held to be violative of Article 19(1)(f) of the Constitution as they cause great hardship to alienees of granted lands;
(iv) Sections 4 and 5 of the Act are violative of Article 31 of the Constitution and the second proviso to clause (1) of Article 31A of the Constitution and hence void;
(v) Section 4 of the Act does not invalidate alienations of granted lands which had been granted prior to the commencement of the Constitiution; and
(vi) Invalidation of transfers of lands granted to only persons belonging to the Scheduled Castes and Scheduled Tribes and resuming only those lands, were discreminatory and violative of Article 14 of the Constitution.
Contention (i):
29. Learned counsel for the petitioners did not challenge the provisions of the Act in so far as they prohibit future transfers of granted lands. They assailed the provisions of the Act only in so far they seek to nullify transfers of granted lands which had taken place prior to coming into force of the Act. They contended that an alienation of a granted land even though prohibited by the Rules governing grant of such lands, was not void ab initio, but was only voidable at the option of the Government. In other words, their contention was that such alienation of a granted land, passed title to the alienee, though the land was liable to be resumed by the Government for contravention of the terms of the grant if the Government chose to do so and that such resumption was not automatic but was in the discretion of the Government.
30. In support of their contention, they strongly relied on the decision of a Division Bench of this Court in Lakshamma v. The Special Deputy Commissioner . 10 Law Reports 650.. There, a land granted under Rule 43 of the Rules made under the Mysore Land Revenue Code, 1888, had been alienated contrary to the condition in clause (a) of sub-rule (6) of that Rule which prohibited alienation of such land for a period of 15 years from the date of the grant. Clause (b) of that sub-rule provided that if such condition was violated, the land granted might be summarily resumed by the Government, that such land would vest in the Government free from all encumbrances and that neither the grantee nor the alienee was entitled to any compensation. The Division Bench held that the actual effect of that Rule was not that no title was acquired under the grant or that upon the breach of the conditions against alienation the grant became void ab initio, but the title acquired under the grant was liable to be lost or could be taken away by action which the Government was permitted to take and that the destruction of the rights of subsequent alienees/or encumbrances was consequential upon a resumption being actually made. Their Lordships added that the resumption according to the language employed in clause (b) of Rule 43(6), did not appear to be compulsory or automatic.
31. The learned Advocate General who appeared for the State, contended that the decision in Lakshamma's case did not lay down the law correctly and that decision required re-consideration. He maintained that their Lordships did not give due effect to the prohibition against alienation contained, in clause (a) of sub-rule (6) of Rule 43. He invited our attention to two decisions of the High Court of Madras.
32. In Ramaiah v. Dharasachi . 1913 25 Mad. L.J 635. a Division Bench of the Madras High Court held that the alienee of a service Inam land acquired no title even if such land had been enfranchised.
33. In Anjaneyalu v. Venugopal Rice Mills . A.I.R 1922 Madras 197., the question that arose before the Full Bench was whether the alienation of a service Inam land in contravention of prohibition against such alienation passed any title to the alienee. The Full Bench held that Section 6(h) of the Transfer of Property Act clearly prohibited transfer of property when such transfer was opposed to public policy, and that if such land was sold by the Inamdar, the purchaser did not get any title since at any moment the Inam could be resumed by the Government when the Inamdar ceased to render service.
34. However, the decisions relied on by the learned Advocate General are distinguishable. Both those cases related to Service Inam lands which had not been enfranchised. As pointed out by the Full Bench of the Madras High Court in Anjaneyalu's case, the right to enjoy a Service Inam land is only as long as the holder of that inam renders service in the performance of which the public have an interest. He should enjoy the produce of the land as a remuneration for the public service he has to render. He should not alienate such land leaving himself without the means of subsistence. When the holder of such Service Inam ceases to render such service, the land would revert to the Government. But in the case of a granted land the grantee got tittle to such land and the grant was jot incomplete or inchoate merely because the grant was subject to the condition that the land was liable to be resumed if the grantee alienated that land before the expiry of a certain period. All that could be said was that the grant was not an absolute one because it contained a defeasance clause by virtue of which the grant was liable to be cancelled and the land was liable to be resumed for violation of any conditions of the grant.
35. For the purpose, of these petitions, it is not necessary to go into the questions whether the decision of this Court in Lakshamma's case lays down the law correctly and whether that decision requires reconsideration by a larger Bench. Even if the correct legal position is as stated in that case, i.e, where a land granted by the Government on the condition that it should not be alienated, is alienated, the alienation is not void ab initio, but the alienee gets a title to the land which may be put an end to if the Government chooses to resume such land, Section 4 of the Act has altered the, legal position by rendering null and void such alienation which was merely voidable. As stated earlier, sub-section (1) of Section 4 declares that notwithstanding anything in law, agreement, contract or instrument, any transfer of granted land, before or after the commencement of the Act, in contravention of the terms of such grant, shall be null and void and that no title, right or interest in such land shall be conveyed or deemed ever to have conveyed by such transfer.
Contention (ii):
36. Learned counsel for the petitioners contended that the power of the Government to resume granted lands which had been alienated in contravention of the condition of the grant, ought to have been exercised by the Government within a reasonable time after such alienations, that there has been long lapse of time between alienations of granted lands and the coming into force of the Act and that acquiesance and the principle of equitable estoppel would come in the way of invalidating such alienations and resuming such alienated lands.
37. In support of the above contention, reliance was placed on the decision of the Court in C.S Narayana Rao v. City Improvement Trust Board . 1969 1 Mys. L.J 237.. There, a site had been allotted to a person by the then City Improvement Trust Board (hereinafter referred to as the Trust Board). One of terms and conditions of such allotment, was that the allottee should commence the construction on the site allotted to him within 6 months from the date on which possession thereof was delivered to him and that the construction should be completed within 2 years thereafter. The Trust Board sought to resume the site allotted for the breach of such condition. This Court held that the power to resume under the agreement, had to be exercised within a reasonable time after the occasion for exercise of that power arose and that as the Trust Board did not exercise such power for a period of nearly 12 years after the occasion arose, it was reasonable to presume abandonment of that power.
38. The above decision is distinguishable, because, there, the resumption of the site was by an act of the Trust Baord, but in the present cases resumption of granted lands is provided by the Act. Where a legislative enactment expressly provides for such resumption, no presumption of abandonment of the power of resumption can arise. Nor can the delay in exercising the power of resumption, affect the validity of the express legislative provisions invalidating alienation of granted lands.
Contention (iii):
39. Learned Counsel for the petitioners strongly urged that invalidation of alienations of granted lands and their resumption by the Government, violated Article 19(1)(f) of the Constitution. Elaborating their contention, learned Counsel said that tens of thousands of alienees who had purchased granted lands from the original grantees or from purchasers from them, would be ruined and rendered landless and thereby would be deprived of their livelihood and would become destitutes.
40. Sub-clause (f) of Article 19(1) of the Constitution was in operation when the Act was passed, but was deleted subsequently by the 44th Amendment of the Constitution with effect from 20th June 1979. If any of the provisions of the Act violated Article 19(1)(f), those provisions have to be held to be void and non est in spite of the subsequent deletion of that sub-clause. Hence it is necessary to examine whether Sections 4 and 5 of the Act violated Article 19(1)(f).
41. Sub-clause (f) of Article 19(1) of the Constitution guaranteed for the citizens the right to acquire, hold and dispose of property. Under Clause (5) of Article 19 the State could make any law imposing reasonable restrictions on the exercise of the right conferred by that sub-clause in the interest of the general public or for protection of the interest of any Scheduled Tribes.
42. As stated in the preamble to the Act, the object of the Act is to prohibit transfer of lands granted to persons belonging to the Scheduled Castes and Scheduled Tribes and to reestore such lands to such persons. The Constitution itself has recognized such persons as belonging to the weaker section of people. Article 46 of the Constitution enjoins the State to promote with special care the educational and economic interest of the weaker section of people and in particular of the Scheduled Castes and the Scheduled Tribes and to protect them from all forms of exploitation. Hence it does not admit of any doubt that it is in the interest of the general public to prohibit alienation of lands granted to persons belonging to the Scheduled Castes and Scheduled Tribes for their advancement and to restore to them such lands which had been alienated in spite of prohibition of alienation of such lands under the terms of grant of such lands to such persons.
43. It is true that even if a law imposed in public interest restrictions on the exercise of the right guaranteed by sub-clause (f) of Article 19(1), such restriction should be reasonable and should not be excessive or disproportionate to the evil sought to be remedied. Can it be said that invalidating transfers of granted lands and restoring them to the original grantees of such lands or their heirs, constituted excessive restrictions on the rights of the alienees of such lands to acquire and to hold such lands? The evil of alienation of granted lands in spite of the prohibition of such alienation which resulted in defeating the object of granting lands of persons belonging to Scheduled Castes and Scheduled Tribes for their economic uplift-ment, could not be remedied except by invalidating such alienations and restoring such lands to the original grantees or their heirs. When the alienees purchased granted lands they knew or could have known by exercise of ordinary care that transfer of such lands had been prohibited under the terms and conditions of such grant and yet, they took the risk of purchasing those lands. They cannot now complain that they have been deprived of such lands.
44. Hence it must be held that the provisions of Sections 4 and 5 of the Act did not impose excessive or unreasonable restrictions on the right of alienees of granted lands to acquire and hold such lands. It follows that Sections 4 and 5 of the Act did not violate Article 19(1)(f) of the Constitution.
Contention (iv):
45. Learned Counsel for the petitioners next contended that Sections 4 and 5 of the Act violated Article 31 and the second proviso to Article 31-A of the Constitution. Elaborating this contention, they said thus: The alienation of a granted land was not void, but was only voidable. Hence, under such alienation the alienee derived a title to such land, though such title was subject to defeasance in the event of the Government choosing to resume such land. Invalidating transfer of such land by Section 4 and resumption of such land by the Assistant Commissioner under Section 5 of the Act, amount to compulsory acquisition of such land by the State. As provided in Article 31 of the Constitution which was in operation when the Act was passed, the State could not compulsorily acquire any land unless the law authorising such acquisition provided for payment to the owner of such land and to persons having interest in such land an amount either fixed by such law or determined in accordance with such principles as might be specified in such law. As Sections 4 and 5 do not provide for payment by the State of any such amount to the alienee for compulsory acquisition of such land, those Sections must be held to be violative of Article 31 of the Constitution and hence void. So ran the argument of learned Counsel for the petitioners.
46. It was also argued by learned Counsel for the petitioners that even if the title of an alienee of a granted land was precarious and was subject to defeasance on the Government exercising its option to resume such land, such land could not be acquired without payment of any compensation to the alienee of such land. In support of this contention, strong reliance was placed on the decision of the Supreme Court in Special Land Acquisition Officer v. N.S Seshagiri Rao . A.I.R 1968 S.C 1045.. There, certain lands had been granted by the Government to the respondents in that appeal on the condition that in the event of the Government requiring those lands for any reason whatsoever, the grantees should surrender such lands to the Government without claiming any compensation. Instead of exercising such power reserved by the terms of the grant, the Government acquired those lands following the procedure prescribed by the Land Acquisition Act. The question arose whether the Government had to pay-compensation for those lands. Agreeing with the decision of this Court, the Supreme Court held that such grantees were entitled to compensation for the lands, the ownership of which had vested in them, though in assessing the compensation payable to them the Land Acquisition Officer could not ignore the existence of the aforesaid condition in the grant of those lands, which severely restricted the rights of the grantees in those lands.
47. The contention of learned Counsel for petitioners founded on the further proviso to Article 31-A(1) of the Constitution was briefly as follows: That proviso states that where any law makes any provision for the acquisition by the State of any agricultural land held by a person under his personal cultivation, it shall not be lawful for the State to acquire any portion of such land as is within the ceiling limit applicable to him under any land ceiling law applicable to him, unless the law relating to the acquisition of such land provides for payment of compensation at a rate not less than the market value of such land. Most of the alienees of granted lands are actual cultivators holding lands within the ceiling limits under the Karnataka Land Reforms Act. Sections 4 and 5 of the Act which bring about compulsory acquisition of granted lands, do not provide for payment of any compensation and much less compensation at the full market value. The second proviso to Article 31-A(1) does not constitute a mere limitation on the legislative power, but confers a corresponding fundamental right upon a person expropriated as held by the Supreme Court in D.G Mahajan v. State of Maharashtra . 1977 2 SCC 548. Hence Sections 4 and 5 of the Act are violative of the fundamental right guaranteed by the second proviso to Article 31-A(1) of the Constitution. So ran the argument of the learned Counsel for the petitioners.
48. The above contentions of the learned counsel for the petitioners do not merit acceptance for more than one reason. After the Assistant Commissioner resumes a granted land which had been alienated, he should restore such land to the original grantee or his legal heirs. If such original grantee or his legal heirs are available, the Assistant Commissioner has no option but to restore such land to them. The Assistant Commissioner taking possession of such granted land from the alienee thereof is merely an intermediate step in the process of restoring such land to the original grantee or his legal heirs. In such a case, the State gets neither the ownership nor beneficial enjoyment of such land.
49. clause (2A) of Article 31, reads:
“(2A). Where a law does not provide for the transfer of the ownership or right to possession of any property to the State or to a Corporation owned or controlled by the State, it shall not be deemed to provide for the compulsory acquisition or requisitioning of property, notwithstanding that it deprives any person of his property.”
Where a granted land is resumed and restored to the original grantee or his heirs, there is neither transfer of ownership of the granted lands nor of the right to possession thereof to the State or a Corporation owned or controlled by the State. In view of what clause (2A) of Article 31 provided, there was no compulsory acquisition within the meaning of Article 31 and the obligation to pay compensation or any amount for such land, did not arise.
50. Even where a granted land is resumed from the alienee thereof and it is not practicable to restore it to the original grantee or his heirs and such land vests in the State, it cannot be said that such land has been compulsorily acquired by the State so as to impose an obligation on the State to pay compensation or any amount for such land. Even according to the ruling of this Court in Lakshamma's case, the alienation of a granted land in contravention of any of the conditions of the grant, is viodable at the option of the Government. Instead of the, Government or any Revenue Officer exercising such option in each case of such alienation, Sections 4 and 5 of the Act have provided for statutory exercise of such option in all cases of such alienations.
51. The decision of the Supreme Court in Special Land Acquisition Officer v. Seshagiri Rao, cannot apply to resumption under the Act of granted lands which had been alienated and restoration of such lands to the original grantees, because the procedure of the Land Acquisition Act is not followed in such resumption and restoration.
52. There is another reason for rejecting the contention that invalidating alienation of a granted land and resumption of such land, are violative of Article 31 and the Second proviso to Article 31A(1) of the Constitution. In order to attract the provision of those Articles, it must be shown that the rights and interest of the alienee in a granted land, can be regarded as property. Unless what is compulsorily acquired is property neither Article 31 nor the second proviso to Article 31A(1) has application. Can the rights and interest of an alienee in a granted land, which were terminable at the option of the Government by resuming such land, be regarded as constituting property?
53. In Ameer Singh v. Custodian of Evacuee property . A.I.R 1957 S.C 599., the facts were these. Amar Singh and four other displaced persons were temporarily allotted certain land in East Punjab. That allotment had to be cancelled for re-adjustment of allotment among various groups of displaced persons according to certain rules and instructions. Amar Singh and those 4 others assailed the cancellation of allotment in their favour, as being violative of their fundamental right to property under Articles 19(1)(f) and 31(1) and (2) of the Constitution. It was urged for them that under the quasi-permanent allotment scheme the allottee was entitled to a right to possession which was itself property. The Supreme Court negatived that contention and held that the quasi-permanent allottee did not have such interest in the property allotted to him as would constitute property which attracted the protection of fundamental rights under the Constitution.
54. In Biswanath Prasad v. Union of India . A.I.R 1965 S.C 821., the petitioner acquired a colliery in transgression of the Mineral Concession Rules, 1949 which prohibited transfer or assignment of mining leases and prospecting licences except with the previous approval of the Central Government. The Coal Board did not grant him permission to re-open the colliery. The petitioner challenged the constitutionality of the provisions of the Coal Mines (Conservation and Safety) Rules. Rejecting his petition, the Supreme Court held that the petitioner who had acquired the colliery in transgression of the Mineral Concession Rules, had not sufficient interest in the property to raise questions about the constitutionality of those Rules.
55. In S.V.V.S.V Vadia v. State of Sourashtra . A.I.R 1967 S.C 346., the facts were these: The Ruler of a Kathiawad State had granted his elder son, the petitioner, in perpetuity and in heridity a village for enjoyment as Bhayat. On the death of that Ruler, the grantee became entitle to the rights of the Ruler which the Government of India recognised. Thereafter, that grant was deemed to have lapsed and reverted to the State. The notification treating the grant as having lapsed was challenged by the petitioner as constituting an infringement of his fundamental right under Article 19(1)(f) of the Constitution. Repelling that contention, the Supreme Court held that on construction of the grant and Hak Patrak the grant was to a cadet of the family and enured to his benefit as long as he remained a cadet, that the petitioner ceased to be a cadet on his becoming the Ruler, that the grant being given as Bhayat, came to an end, that as the grant was not absolute grant but was one which by its very nature contained a defeasance clause and that hence the petitioner could not found his claim on any violation of his fundamental right.
56. In the light of aforesaid three decisions of the Supreme Court, it appears to us that the rights and interest of an alienee, of a granted land, which are defeasible by the resumption of that land by the Government for violation of the condition prohibiting alienation of such land, cannot be regarded as property for the purpose of Article 31 or the second proviso to Article 31-A(1) of the Constitution. Hence the contention that Sections 4 and 5 of the Act are void as being violative of Articles 31 and 31A of the Constitution, should fail.
57. However, learned counsel for the petitioners contended that the Act should have provided for payment of compensation to alienees of granted lands, for the value of improvements made by them in the granted lands after they purchased them and the Act should have also provided for the alienees getting back from the alienors the prices paid for purchase of such lands.
58. Learned Counsel for petitioners submitted that many of the alienees of granted lands had paid substantial amounts as prices for purchasing such lands, that many such alienees had sunk large sums of money for developing and improving those lands and that it would be highly unjust and inequitable to resume such lands without paying any compensation for such improvements. It was also argued that when granted lands are restored to original grantees or their legal heirs, they should have been required to repay the monies paid to them for alienating those lands and that it would be unjust enrichment of them to give them the benefit of restoration of granted lands which they had alienated without imposing on them the obligation to refund the monies they had received as consideration for alienating those lands.
59. There is nothing in the Act which makes the provisions of the Transfer of Property Act, 1882 (hereinafter referred to as the T.P Act) and of the Indian Contract Act, 1872 inapplicable to alienations of granted lands. Section 51 of the T.P Act provides that where a transferee of an immovable property makes any improvement thereon believing in good faith that he is absolutely entitled thereto and he is subsequently evicted therefrom by a person having a better title, the transferee has a right to require the person causing eviction to have the value of the improvements at the time of eviction, estimated and paid or secured to the transferee or to sell his interest in such property to the transferee at the then market value thereof, irrespective of the value of such improvement. That Section further provides that when in the circumstances aforesaid the transferee has planted or sown on such property crops which are growing when he is evicted therefrom, he is entitled to such crops and free ingress and egress to gather and carry them.
60. The term good faith occurring in Section 51 of the T.P Act, has been interpreted as honestly believing, whether negligently or not. Good faith may be inferred from the very fact that alienees have expended large sums of money on improvements.
61. An alienee of a granted land who is sought to be evicted therefrom, may, before leaving such land, take crops growing therein and remove fixtures put up by him on that land if they are capable of being removed without damaging the land. For improvement made by him in that land, he has a right to require the authority or person causing eviction to have the value of such improvement estimated and paid to him. The equitable doctrine of unjust enrichment also requires that the person or the authority getting the benefit of such improvement by evicting the alienee, should compensate the alienee therefor.
62. Sub-Section (2) of Section 55 of the T.P Act provides that in the absence of a contract to the contrary, the seller shall be deemed to contract with the buyer that the interest which the seller professes to transfer to the buyer, subsists and that he has power to transfer the same. As stated in Mulla's commentary on the T.P Act, this implied covenant of title has nothing to do with the question whether the buyer has or has not notice of any defect in the title and that even if the buyer was, at the time of the contract, aware of such defect, he may, under this covenant, hold the seller responsible for the damages and may claim refund of the purchase money if he (the buyer) is dispossessed by reason of such defect in the title.
63. Thus, if an alienee of a granted land is evicted by the Assistant Commissioner under Section 5 of the Act, the alienee may remove standing crops and fixtures put by him in such land. He may sue his alienor for the return of the purchase money. He can also claim from the original grantee or his heirs to whom such land is restored, the value of the improvements made by him in that land. The right to get such return of the purchase money and the right to claim the value of such improvements, will mitigate to some extent the hardship caused to the alienee of a granted land when is evicted therefrom under Section 5 of the Act.
Contention (v):
64. Sri K. Shivashankar Bhat, learned Counsel for the petitioner in W.P No. 7762 of 1980, contended that since clause (d) of Section 3 of the Act defines the term ‘the scheduled castes and scheduled tribes’ as having the meanings respectively assigned to them under the Constitution, the provisions of the Act have no application to alienations of granted lands made prior to the commencement of the constitution on 26th January 1950. Elaborating this contention, he submitted that the concept of the scheduled castes and the scheduled Tribes came into existence only under the Constitution and that hence the Act could not have intended to invalidate alienatioins of lands that took place prior to 26th January 1950.
65. It is true that the terms ‘the scheduled castes’ and ‘the Scheduled Tribes’ occurring in the Act, have the meanings assigned to them in the constitution. That does not mean that castes and tribes which are included in the list of scheduled castes and scheduled tribes under the Constitution, did not exist prior to the commencement of the Constitution. Most of those castes and tribes were known as Depressed Classes, Harijans, Tribal people and Girijans. If the Government had granted a land to any person belonging to a caste or a tribe which, after the advent of the Constitution, came to be included in the list of Scheduled Castes or the lists of Scheduled Tribes, there is no reason why such land should not be regarded as coming within the ambit of the term ‘granted lands’ as defined in Clause (b) of Section 3. There is also no reason why the provisions of the Act should not apply to such lands. Thus, we have no hesitation in rejecting the contention of Shri Shivashankar Bhat that alienations of lands granted prior to 26th January 1950 cannot be invalidated under the Act nor can such lands be resumed.
Contention (vi):
65. It was next contended that the Act is discriminatory and violative of Article 14 of the Constitution inasmuch as the Act invalidates alienations of lands in contravention of the terms and conditions on which they were granted to persons belonging to only Scheduled Castes and Scheduled Tribes and not grants of lands to persons other than those belonging to the Scheduled Castes and Scheduled Tribes. Eleborating this contention, learned Counsel for the petitioners pointed out that under the Land Grant Rules set out above, lands were granted free or at upset prices, also to persons other than those belonging to Scheduled Castes and Scheduled Tribes and that grants were also subject to the condition that the grantees of such lands should not alienate them for certain specified periods and that the Act has not touched alienations of such lands by such grantees (other than those belonging to Scheduled Castes and Scheduled Tribes) in contravention of the terms and conditions of such grants.
66. Learned Counsel for petitioners are right in their submission that the aforesaid Land Grant Rules provided for grant of lands either free or at upset prices not only to persons belonging to Scheduled Castes and Scheduled Tribes, but also to poor and landless persons in general and that the Act does not deal with alienations made by grantees other than those belonging to Scheduled Castes and Scheduled Tribes even though such alienations were also in contravention of the terms and conditions of grant of such lands.
67. The question is whether the classification of grantees of lands by the Government into those belonging to Scheduled Castes and Scheduled Tribes and those not belonging to those categories, is a valid classification for the purpose of Article 14 of the Constitution. The Constitution itself has treated persons belonging to Scheduled Castes and Scheduled Tribes as forming a separate class for giving them certain protection and special treatment in certain matters. Clause (4) of Article 15 and clause (4) of Article 16 are such instances of special treatment. This is in recognition of the fact of utmost backwardness of persons belonging to Scheduled Castes and Scheduled Tribes and the handicaps from which they have suffered for centuries. Hence the similar classification made by the Act, cannot be said to be offensive of Article 14 of the Constitution.
68. Morever, it is well settled that to remedy an evil, the State need not necessarily remedy all evils and that the State can choose to tackle any particular evil or evils only.
69. Hence we have no hesitation in rejecting the contention that Article 14 of the Constitution is violated on account of the provisions of the Act dealing with alienations of lands granted by the State to persons belonging to Scheduled Castes and Scheduled Tribes only, leaving out alienations of lands granted to persons other than those belonging to Scheduled Castes and Scheduled Tribes.
70. All the contentions urged by learned Counsel for the petitioners fail and we dismiss these writ petitions.
71. However, in the circumstances of these petitions, we direct the parties to bear their own costs.
72. Before parting with these cases, we express a hope that the State Legislature will bring a suitable amendment to the Act so as to provide for an effective and cheap machinery for speedy settlement of claims for compensations for improvements made by alienees in granted lands and also claims for recovery from the alienors amounts which had been paid to them as consideration for such alienations. Ordinarily suits in Civil Courts would be too costly and slow for settlement of such claims. We also hope that where alienees of granted lands who are evicted from those lands under Section 5 of the Act, do not possess other agricultural lands, they would be considered for grant of alternative lands treating them on par with displaced holders and displaced tenants to whom some priority is given while granting Government lands. Appropriate amendment may be made to the Karnataka Land Grant Rules, 1969.