Veeramma vs The Deputy Commissioner and Others

Hari Nath Tilhari, J.—Heard the petitioner''s counsel. The petitioner has sought writ of certiorari for quashing the order dated 7.8.1997, passed by Asst. in Commissioner in Case No. PTCL 30/92-93 and PTCL 10/96-97, as per Annexure "F". The petitioner has further sought the relief of prohibition or any other writ to prohibit respondent No. 1 from proceeding with Appeal No. SC/ST 22/97-98, whereby he has challenged the order of the Assistant Commissioner passed u/s 5 of Act No. 2 of 79.

The order at Annexure - F is the order of resumption of the land after having declared the sale deed dated 3.12.1990 to be null and void, as being in breach of the terms of Section 4 of the Act. By this sale deed the petitioner had purchased the granted land from the grantee who belongs to Scheduled Caste. In other word the grantee belong to Scheduled Caste. The land was granted in his favour some time in 1974 and as admitted by the petitioner, it was a grant for something less than the full market value. Therefore, there was a prohibition clause applicable prohibiting the transfer of the granted land for 15 years. Petitioner''s case has been that transfer in this case has been made after expiry of the period of 15 years and therefore, transfer could not be declared to be illegal, null and void. But the Assistant Commissioner illegally declared it to be null and void and directed the land to stand resumed in the Government and restored to the original grantee or his legal representatives. Learned Counsel contended that this sale has been made after the expiry of 15 years. It was valid and it has illegally been declared to be null and void. Transfer is nodoubt subsequent to the date of coming into force of the Act. The Act applies to the lands which had been granted either before coming into force of the Act or after that by the Government in favour of the persons belonging to Scheduled Caste or Scheduled Tribes. If the transaction of sale is hit by Section 4 of the Act, it is void. Section 4(1) provides that notwithstanding in any law, agreement, contract or instrument, the transaction of sale of granted land, if made in contravention of -- (a) the terms or the grant; or (b) the provisions of law relating to the grant or; (c) in contravention of Sub-section (2) of Section 4 of the Act, the transfer shall be null and void and shall not confer nor will be deemed to have conferred any title or interest in land or right in such land in favour of the transferee.

Sub-section(1) of Section 4 of the Act indicates that it applies in case of transfer irrespective of the fact that transfer has been made earlier to the coming into force of the Act or subsequent to the coming into force of the Act, it applies to transfers of granted land. If a transfer has been made after the coming into force of the Act and even if it is not in breach of the terms of the grant, even if it has been made after the expiry of the period of operation of no alienation clause, provided under the grant or Rules, but if the transfer is one which has been made after the coming into force of the Act, then in those cases, Sub-section (2) of Section 4 of the Act will apply. That if transfer has been made after the coming into force of the Act, then Sub-section 2 being prospective will and being applicable to transfers made after the commencement of the Act, what is required is that the transferor or the transferee will have to seek the previous permission of the Government to make the transfer. The transferee will have to seek the permission to acquire the granted land by transfer and the transferor will have to seek permission that he may be allowed to make transfer. If such a permission from the Government has not been obtained made and the granted land has been transferred after coming into force of the Act, irrespective of the fact that the land was granted earlier to the commencement of the Act or subsequent to the coming into force of the Act, transfer which is in breach of Sub-section (2) will be null and void. What is material to be seen for application of Sub-section (2) is that whether the transfer in question has been made of the granted land by the grantee, before the coming into force of the Act or after the coming into force of the Act. In cases where transfer has been made or is shown to be made before coming into force of the Act, of the granted land and transfer has been made after the expiry of the period of non-alienation clause, no doubt as contended by Learned Counsel for the petitioner as well, the provisions of the Act 2 of 79 will not apply and will not affect its legality or validity. But if the transfer of the granted land irrespective of the period of the grant i.e., whether it has been granted earlier to the passing of the Act or subsequent to the passing of the Act, but if transfer has been made on any date after the enforcement of the Act, irrespective of the fact that prohibitory clause under the grant Rules or under the grant certificate has expired, even then bar under Sub-section (2) will be operative. That Section 4(2) of the Act provides, no person shall transfer after the commencement of this Act, nor acquire by transfer any granted land without previous permission of the Government. This mandates that neither granted land shall be transferred nor shall be acquired by any person by transfer from the grantee, until and unless the necessary permission has been previously obtained from the Government. It means there is a complete bar and the bar created under Sub-section (2) of Section 4 will stand removed only on the grant of permission by the State Government, otherwise, grantee cannot make transfer of the granted land, nor can any person acquire granted land by way of transfer from the grantee. This view of mine find support from an earlier decision of this Court the case of Thippaiah Vs. The Deputy Commissioner and Others,

In the present case the transfer having been made in December, 1990, even though it has been made after the completion of 15 years, in the absence of necessary permission as provided in Sub-section (2a), the transfer has been null and void in view of what is provided in Sub-section (1) of the Act. The contention of the Learned Counsel for the petitioner that it applies only to the lands granted after the coming into force of the Act, is without substance and not correct and it is based on misconception Really Sub-section (1) clearly mentions and refers to the date of transfer. Sub-section (1) says transfer made earlier to the Act or afterwards. Sub-section (2) clearly says it will apply to transfers made after the commencement of the Act, and transfers of granted land cannot be made without obtaining the prior permission from the Government of the State. In this context it is immaterial whether the land was granted earlier to commencement of the Act or afterwards. The decision in MANCHE GOWDA v. STATE ILR 1984 KAR 1 may not be read as laying down the law, which may render Sub-section (3) nugatory. The question of effect of Section 4(2) of the Act or its breach has not been directing or otherwise, raised in the case nor involved therein. So that decision is not of any help to petitioner. Thus considered petition has got no merits.

The counsel at the last stage submitted that he may be allowed to withdraw the petition. It is now too late in the day now as he was offered the option either to withdraw the Writ Petition or let it be dismissed on the ground of alternative remedy against Assistant Commissioner being available to the petitioner, as petitioner''s appeal is pending, instead of arguing on merits here, the petitioner raise a all contentions available, the Learned Counsel preferred to argue on merits with reference to Assistant Commissioner''s order with all force at his command. So now at this stage when judgment has been given a merits as desired and pressed, the Writ Petition nor can''t be allowed to be withdrawn.

Thus considered as above, in my opinion the order of the Assistant Commissioner the copy of which is Annexure F to this petition does appear to be valid and within jurisdiction, and has been passed in accordance with the law applicable and does not call for interference at all. The writ petition being devoid of merits as such deserves to be dismissed.

That as petitioner''s counsel pressed Writ Petition on merit forcefully inspite of his appeal pending before the Deputy Commissioner, the point involved and raised in the Writ Petition has been considered and the decision by this Court in this Writ Petition has been given, instead of dismissing it on the ground of alternative remedy.

The Writ Petition is disposed of finally as dismissed.