HARISHCHANDRA HEGDEversusSTATE OF KARNATAKA AND ORS.

                     HARISHCHANDRA HEGDE                                 A
                                   V.
                STATE OF KARNATAKA AND ORS.

                        DECEMBER 18, 2003

               [S.B. SINHA AND ARUN KUMAR, JJ.]                          B

     Karnataka Scheduled Castes and Scheduled Tribes

     (Prohobition of Transfer of Certain lands) Act, 1978:

      Ss. 4 and 5-Restoration of land to grantee-Transferee's claim for C
value ofimprovements made in the land-Government grantee-Alienating
land in 1962-Act declaring void the alienations made in contravention
ofterms ofgrant-Land restored to original grantee-Transferee claiming
that order passed uls. 5 of the Act would be subject to his right to claim
value of improvements as prescribed uls. 51 of Transfer of Property Act- D
Held, consequnces contained in s. 5 of the Act apply automatically in the
event an order u/s. 4 is passed-S.4, which contains a non-obstante clause,
would apply notwithstanding anything contained in any agreement or any
other law for the time being in force-S.51 of Transfer of Property Act
applies to inter vivos transfers-It does not apply to a transfer made by E
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 Transfer ofProperty Act cannot be applied in such
a case-On facts, the matter is governed by special statute i.e., ·the Act,
 whereas Transfer of Property Act is a general Act-Unless there exists a F
provision in the Act, an order passed thereunder cannot be supplanted or
supplemented with reference to another statute-S. 51 of Transfer of
Property Act cannot be held to have any application in the case-Transfer
of Property Act, 1882-S.51.

     Manchegowda & Ors. v. State of Karnataka & Ors., (1984) 3 sec G
301, relied on.

    Amrendra Pratap Singh v. Tej Bahadur Prajapati & Ors., JT (2003)
9 SC 201 and Krishnappa S. V & Others v. State of Karnataka & Others,
ILR (1982) 2 Kar., 1310, referred to.                                    H
                                  1111
    1112               SUPREME COURT REPORTS [2003] SUPP. 6 S.C.R.

A        CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5385 of
    1997.

         From the Judgment and Order dated 16.2.96 of the Karnataka High
    Court in W.A. No. 1045 of 1992.

B          Girish Ananthamurthy and P.P. Singh for the Appellant.

           Kavin Gulari and Sanjay R. Hegde for the Respondents.

           The following Order of the Court was delivered :
c        The short question which falls for consideration in this appeal arising
    out of a judgment and order dated 16.2.1996 passed by the High Court of
    Karnataka in Writ Appeal No. I 045 of 1992 is as to whether Section 51
    of the Transfer of Property Act is applicable in the cases covered by
    Sections 4 and 5 of the Karnataka Scheduled Castes and Scheduled Tribes
D   (Prohibition of Transfer of Certain Lands) Act, 1978 (the Act, for short).

         On or about 1.5.1961, two acres ofland in Survey No. 134/110 were
    granted by the Government ofKarnataka in favour of one Smt. Gangamma.
    The appellant purchased the said land from her through a registered sale
E   deed for valuable consideration on 13.9.1962 and allegedly invested a lot
    of money for improvement thereof. The Act 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
F   were resumed and restored to the original grantee in terms of Section 5
    of the Act. On or about 11.9.1986, the original grantee made an application
    for initiation of a proceeding under Section 4 of the Act, in pursuance
    whereof the proceeding was initiated against the appellant. An order of
    restoration of the land in favour of the original grantee was made by the
G   Assistant Commissioner on 29.5.1987. The appellant preferred an appeal
    before the Deputy Commissioner thereagainst which was also Idismissed
    on 25 .3 .1989. The appellant thereafter· filed a writ petition which was
    marked as Writ petition No. 23216 of 1990 for a declaration that any order
    passed by the Assistant Commissioner under Section 5 of the Act for
H   restoration ~f land would be subject to the right .of the transferee to claim
                          H. HEGDE v. STATE                             1113

the value of the improvements as prescribed under Section 51 of the A
Transfer of Property Act. The said writ petition was dismissed by the
learned Single Judge. The writ appeal filed by the appellant was also
dismissed by reason of an order dated 16.2.1996.

      The learned counsel appearing on behalf of the appellant would B
submit that having regard to the fact that the appellant herein purchased
the land in question as far back as on 13 .9 .1962, he is entitled to the benefit
of Section 51 of the Transfer of Property Act.

     Sections 4 and 5 of the Act read as under :
                                                                                 c
         "Section 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 D
         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 E
         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.                     F
         Section 5. Resumption or restitution ofgranted 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 G
         (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:                                           H
    1114              SUPREME COURT REPORTS [2003] SUPP. 6 S.C.R.

A                 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
B
                  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 accord-
                  ance with rules relating to grant of land.
c
                  (2) Any order passed under sub-section (l) 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 Commissio;ier in pursuance of
D           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,
E           that such person has acquired the.land by a transfer which is null
            and void under the provisions of sub-section (l) of Section 4."

          The High Court in its impugned judgment noticed that the validity
    of the Act was upheld by the High Court in Krishnappa S. V. & Others v.
F   State of Karnataka & Ors., ILR ( 1982) 2 Kar, 1310, stating :

            "Thus, if an alienee of a granted land is evicted b~ 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
G           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
H           he is evicted therefrom ·under Section 5 of the Act."
                          H. HEGDE v. STATE                              1115

      This Court in Manchegowda & Ors. v. State of Karnataka & Ors., A
(1984] 3 sec 301 while considering the vires of various provisions of the
Act, including the rights of the transferee, payment of compensation, etc.
held that such grants being crown grants the question of asserting of
compensation and till then to continue the transferees in possession as not
tenable. This Court held that when a transaction is against public policy B
as in case of transfer of land by grantees belonging to weaker sections to
others, such a transfer is rendered void. On these findings the writ petition
was dismissed.

THE ACT:
                                                                                  c
      The Act was enacted with the object enshrined in the preamble of the
Constitution including the directive principles of the State policy viz., for
improving the social and economic conditions of persons belonging to
weaker sections of the society and in pa1ticular those belonging to SC and
ST categories. The State by reason of the provisions of the Act has been D
empowered to resume the land and restore the same to the grantees in the
event it is found that any transfer thereof has taken place in violation of
the terms of the grant. Such order of rest:mption is required to be passed
with a view to avoid unnecessary delay or protracting the proceedings.
                                                                                  E
     In Manchegowada (supra) it was held:

         "Transferees of granted lands with full knowledge of the legal
         position that the transfers made in their favour in contravention
         of the terms of grant or any law, rule or regulation governing such      F
         grant are liable to be defeated in law, cannot and do not have in
         law or equity, a genuine or real grievance that their defeasible title
         iri such granted lands so transferred is, in fact, being defeated and
         they are being dispossessed of such lands from which they were
         in law liable to be dispossessed by process of law."
                                           .
     The Transfer of Property (Act No. 4 of 1882) was enacted for the
                                                                      G

purpose of amending the law relating: to the transfer of property by act of
parties.


     Section 2(d) of the Act reads thus :                                         H
    1116                  SUPREME COURT REPORTS [2003] SUPP. 6 S.C.R.
A             "2. Repeal of Acts - Saving of certain enactments, incidents,
              rights, liabilities, etc. - In the territories to which this Act extends
              for the time being the enactments specified in the Schedule hereto
              annexed shall be repealed to the extent therein mentioned. But
              nothing herein contained be deemed to affect -
B                   xxx                       xxx                    xxx

              (d)   save as provided by section 57 and Chapter IV of this Act,
                    any transfer by operation of law or by, or in execution of,
                    a decree or order of a Court of competent jurisdiction;
c
              and nothing in the second Chapter of this Act shall be deemed !o
              affect any rule of Muhammadan Law."

           Section 51 of the said Act reads thus :

D             "51. ·Improvements made by bona fide holders under defective
              titles. - When the transferee of immovable prope1ty makes any
              improvement on the property, believing in good faith that he is
              absolutely entitled thereto, and he subsequently evicted therefrom
              by any person having a better title, the transferee has a right to
E             require the person causing the eviction either to have the value
              of the improvement estimated and paid or secured to the trans-
              feree, or to sell interest in the property to transferee at the then .
              market value thereof, irrespective of the value of such improve-
              ment.
F
                   The amount to be paid or secured in respect of such
              improvement shall be the estimated value thereof at the time of
              the eviction.

                   When, under the circumstances, aforesaid, the transferee has
G             planted or sown on the property crops which are growing when
              he evicted therefrom, he is entitled to such crops and to free
              ingress and egress to gather and carry them."

           By reason of an order passed under Section 4 of the Act, the lands
H are directed to be restored in the event the illegalities specified therein are
                         H. HEGDE v. STATE                          1117

discovered. The consequences contained in Section 5 of the Act applies A
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 Property Act is a general Act and in that view of B
the matter also Section 51 of the Transfer of Property Act will have no
application and the consequences contained in Section 5 would prevail.

     The Court in Manchegowda (supra) while interpreting the scope of
Sections 4 and 5 of the Act, held :
                                                                           c
        "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 D
        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 E
        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 F
         right and interest.... "

      Yet recently in Amrendra Pratap Singh v. Tej Bahadur Prajapati &
Ors., JT (2003) 9 SC 201 this Court following Manchegwda (supra) and
a large number of other ceases, held :
                                                                           G
        "Tribal areas have their own problems. Tribals are historically
        weaker sections of the society. They need the protection of the
        laws as they are gullible and fall pray to the tactics of unscrupu-
        lous people, and are susceptible to exploitation on account of their
        innocence, poverty and backwardness extending over centuries. H
    1118                SUPREME COURT REPORTS (2003] SUPP. 6 S.C.R.

A             The Constitution of India and the Jaws made thereunder treat
              tribals and tribal areas separately wherever needed. The tribals
              need to be settled, need to be taken care of by the protective arm
              of the law, and be saved from falling pray to unscrupulous device
              so that they may prosper and by an evolutionary process join the
              mainstream of the society. The process would be slow, yet it has
B
              to be initiated and kept moving. The object sought to be achieved
              by the 1950 Act and the 1956 Regulations is to see that a member
              of an aboriginal tribe indefeatably continues to own the property
              which he acquires and every process known to law by which title
              in immovable property is extinguished in one person to vest in
c             another person, should remain so confined in its operation in
               relation to tribals that the immovable property of one tribal may
              come to vest in another tribal but the titlt in immovable property
               vesting in any tribal must not come to vest in a non-tribal. This
              is to see and ensure that non-triabals do not succeed in making
D              in-rods amongst the tribals by acquiring property and developing
               roots in the habitat of triabls."

         This Court further observed that the expression 'transfer' should be
    given a broader meaning.

E         Section 51 of the Transfer of Property act applies to inter vivas
    transfers. It, as noticed hereinbefore, does not apply to a transfer made by
    operation of Jaw. 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 Tran:>fer of Property Act cannot be applied
F   in such a case. The matter is governed by a special stature. Unless there
    exists a provision therein, an order passed thereunder cannot be supplanted
    or supplemented with reference to another statute.

           We are, therefore, of the opinion that Section 51 of the Transfer of
G Property Act, cannot be held to have any application in the instant case.
    There is no merit in this appeal, which is accordingly dismissed. No costs.

    R.P.                                                     Appeal dismissed.
                                                                                   f.·