SATYAN versus DEPUTY COMMISSIONER & ORS. on 30 April 2019

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SUPREME COURT REPORTS

[2019] 6 S.C.R.

SATYAN

v.

DEPUTY COMMISSIONER & ORS.

(Civil Appeal Nos. 2976-2983 of 2019)

APRIL 30, 2019

[SANJAY KISHAN KAUL AND INDIRA BANERJEE, JJ.]

Karnataka Scheduled Castes and Scheduled Tribes(Prohibition of Transfer of Certain Lands) Act, 1978:

s. 4 – Prohibition of transfer of granted lands – The grantput a condition of non-alienation of the granted land for a periodof 15 years – The granted land transferred to the appellants by thebeneficiaries of the grant, after 15 years of the grant – Applicationalleging that the sale deeds were illegal as they were executed withoutprior permission of competent authority – Asstt. Commissioner setaside the sale deeds – Order confirmed by Deputy Commissioner inappeal – Order further confirmed in writ petition and writ appealby the High Court – Appeal to Supreme Court – Plea of appellantsthat permission for transfer was not required post the period of 15years – Held: Appellant throughout having sought to make out acase based on prior permission, cannot take such new plea beforeSupreme Court – Sub-section (2) of s. 4 puts an absolute ban ontransfer after commencement of the Act without prior permissionof the Government – Therefore, after a period of 15 years also,prior permission was required – The competent authority had actedwithin its jurisdiction to nullify the transactions which were contraryto the statutory provisions of s. 4(2) – Delay of 8 years by itselfcannot come in the way of the competent authority taking the action,the Act being a beneficial legislation – Karnatka Land Grant Rules,1969 – r. 9 – Delay/Laches.

Dismissing the appeals, the Court

HELD: 1.1 All the orders below are predicated on areasoning that while the appellant sought to make out a case thatpermission had been granted, no such permission had actuallybeen granted by the competent authority, and the documentsfurnished in this behalf were found to be forged and fabricated.

There ought to have been full disclosure of documents. Thecriminal proceedings, however, are still pending qua that aspect.It is not necessary to non-suit the appellant on this ground itself.[Para 25][893-A-B]

1.2 The appellant had throughout sought to make out a casebased on prior permission by the competent authority. It wasnobody’s case that permission was not required to be obtained.The appellant, faced with a factual situation where the permissionsdo not exist, now sought to build another bridge to contend thatbe that as it may, no permission is required. Such a plea cannotbe countenanced. At this stage of the civil appeal, without anypleadings being there, it is not even really open to the appellantto have pleaded the interpretation they so sought to plead. Thiscannot be categorized as a legal plea alone, and that too raised atthe fifth level of scrutiny in the hierarchy of proceedings.[Para 26][893-C-D]

1.3 The non-alienation clause existing in the KarnatakaLand Grant Rules, 1969 and incorporated in the grants, was foundto be inadequate to protect the interests of Scheduled Castesand Scheduled Tribes, who were given land owing to theirignorance and poverty. Influential and powerful sections of societywere stated to be obtaining sales and mortgages forconsideration, and Scheduled Castes and Scheduled Tribesbecame victims of circumstances. The objective of the StateGovernment in enacting the said Act was to prevent such misuseand, therefore, in categorical terms, transfer with permission wasprescribed. This would be de hors the terms of the grant or thesaid Rules. Thus, whether it was a case where it was within thewindow of five (5) to fifteen (15) years, or the period beyond fifteen(15) years, such permission would be required. [Para 27][893-E-G]

1.4 No doubt Rule 9 of the said Rules, enacted under adifferent enactment, prior to the enactment of the said Act (andthereafter even amended), does contemplate transfer betweenthe window of five (5) to fifteen (15) years on certain terms andconditions, which are required to be satisfied by the DeputyCommissioner. There is, in fact, a prohibition in grant of suchpermission until and unless there is satisfaction of the Deputy A

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ACommissioner that the alienation is for the purpose of acquiringother land, or for improving the remaining land and that thegrantee credits to Government an amount equal to fifty percentof the market value of such land as on the date of sanction ofsuch alienation. Thus, more rigorous terms have been put fortransfer within the window of five (5) to fifteen (15) years.B[Para 28][893-H; 894-A-B]

1.5 The reason for the competent authority to arrive at adecision whether to grant permission or not after the period offifteen (15) years may or may not be coloured by suchconsiderations. But certainly, he may satisfy himself that theCmembers of the Scheduled Castes and Scheduled Tribes only,who have been allotted the land, are not taken for a ride, and it ispossibly in their best interest for recorded reasons that suchpermission should be granted. The wordings of Section 4(2) ofthe said Act are quite clear in its terms. [Para 29][894-C-D]

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1.6 Section 4 of the Act, dealing with prohibition of transferof granted land, in sub-section (1), begins with a non obstatnteclause. It is notwithstanding anything in any agreement, contractor instrument, or for that matter in any law. Section 11 of the saidAct further enforces this by giving the said Act an overridingEeffect over any other law. [Para 30][894-E]

1.7 Section 4 is applicable for grants made either before orafter the commencement of the Act. The terms of the grant cannotbe contravened, but the last part of sub-section (1) of Section 4of the said Act makes any transfer in violation of sub-section (2)Falso null and void. Sub-section (2) of Section 4 of the said Act iscrisp and clear in its terms, putting an absolute ban on transferafter the commencement of the Act, without previous permissionof the Government. Thus, a bare reading of the provision makesit abundantly clear that it brooks no two interpretations. Afterthe period of fifteen (15) years also, thus, permission was requiredGto be taken. [Para 31][894-G-H; 895-A]

1.8 The courts below committed no error, and the competentauthority has acted within its jurisdiction to nullify the transactionswhich are contrary to the statutory provisions of Section 4(2) of H

the Act, and the manner of execution itself raised many doubts.[Para 36][896-E-F]

Dharma Naika v. Rama Naika & Anr. (2008) 14 SCC517 : [2008] 2 SCR 451 – relied on.

Manchegowda & Ors. v. State of Karnataka & Ors.(1984) 3 SCC 301 : [1984] 3 SCR 502 ; IbrahimpatnamTaluk Vyavasaya Coolie Sangham v. K. Suresh Reddy& Ors. (2003) 7 SCC 667 : [2003] 2 Suppl. SCR 698 ;Situ Sahu & Ors. v. State of Jharkhand & Ors. (2004)8 SCC 340 : [2004] 3 SCR 504 ; Chhedi Lal Yadav &Ors. v. Hari Kishore Yadav (Dead) throughLegal Representatives & Ors. (2018) 12 SCC 527 ;Harishchandra Hegde v. State of Karnataka & Ors.(2004) 9 SCC 780 : [2003] 6 Suppl. SCR 1111 ; K.D.Sharma v. Steel Authority of India Limited & Ors. (2008)12 SCC 481 : [2008] 10 SCR 454 ; A. Shanmugam v.Ariya Kshatriya Rajakula Vamsathu MadalayaNandhavana Paripalanai Sangam represented by itsPresident & Ors. (2012) 6 SCC 430 : [2012] 4 SCR 74 ; Hari Narain v. Badri Das [1964] 2 SCR 203 –referred to.

2. A delay of eight (8) years by itself cannot come in the wayof the competent authority taking the action, as limitationprinciples would not apply. The period of eight (8) years cannotbe said to be such, as to amount to such delay and laches aswould make the action void, considering that it is in respect of abeneficial legislation for the Scheduled Castes and ScheduledTribes community. [Paras 33 and 34][895-G; 896-A-C]

Amrendra Pratap Singh v. Tej Bahadur Prajapati & Ors.(2004) 10 SCC 65 : [2003] 6 Suppl. SCR 42– relied on.

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CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 2976-C2983 of 2019.

From the Judgment and Order dated 16.10.2009 of the HighCourt of Karnataka at Bangalore in Writ Appeal Nos. 335 of 2009 (SC/ST) and order dated 29.10.2009 in Writ Appeal Nos. 321, 325, 327, 329,331, 336 and 349 of 2009 (SC/ST).DDushyant A. Dave, Sr. Adv., Mrityunjai Singh, Ms. SwatiBhardwaj, Ms. Preeti Panwar (for M/s. Lawyer’s Knit & Co.), Advs.for the Appellant.

Huzefa Ahmadi, Sr. Adv., Anand Sanjay M. Nuli, Dharm Singh,Suraj Kaushik (for M/s. Nuli & Nuli), Krishna Kumar Singh (for M. P.EShorawala), V. N. Raghupathy, Manender Pal Gupta, Advs. for theRespondents.

The Judgment of the Court was delivered by SANJAY KISHAN KAUL, J.

F1. The State Government of Karnataka granted lands to membersof the Scheduled Caste and Scheduled Tribe community, free of charge,to assist in their economic empowerment and to provide them withopportunity for self-employment through agriculture, the lands grantedbeing agricultural lands. In the early 1980s, the private respondentsNo.3 were made beneficiaries of such grants on 12.8.1982, of landsGmeasuring approx. two (2) acres for each of these beneficiaries,numbering eight (8), in Bannikuppe Village, Bidadi Hobli, Ramanagaram,Bangalore Rural District. These grants came with certain restrictions,especially qua transfer, so that the very objective with which the landshave been allotted is not defeated. We are concerned, in the presentHappeals, with the transfer of these lands to the appellant by all the eight

(8) beneficiaries, in August and September, 1997, which were sought tobe annulled by the orders of the competent authority, under The KarnatakaScheduled Castes and Scheduled Tribes (Prohibition of Transfer ofCertain Lands) Act, 1978 (hereinafter referred to as the ‘said Act’).

2. The grants made are on similar terms, and for the presentcontroversy, clause 8 of the grant is material, which puts a condition ofnon-alienation for a period of fifteen (15) years. This clause appears tobe in pursuance of Rule 9(i) of the Karnataka Land Grant Rules, 1969(hereinafter referred to as the ‘said Rules’), formulated in pursuance ofthe powers conferred under Section 197 of the Karnataka Land RevenueAct, 1964. The said Rule 9, to the extent applicable on the relevant date,reads as under:

“9. Conditions of Grant:- (1) The grant of lands under theserules (for agricultural purposes) shall be subject to the followingconditions namely:-

(i) the grantee shall not alienate the land for a period of fifteenyears from the date of taking possession:

Provided that he may, after a period of five years, with the previouspermission of, and subject to the provisions of the KarnatakaScheduled Castes and Scheduled Tribes ( Prohibition of Transferof Certain Lands) Act, 1978 (Karnataka Act 2 of 1979), and suchconditions as may be specified by the Deputy Commissioner,alienate the whole or any portion of such land. But however, theDeputy Commissioner shall not grant such permission unless heis satisfied that the alienation is for the purpose of acquiring otherland or for improving the remaining land and the grantee creditsto Government an amount equal to fifty percent of the marketvalue of such land as on the date of sanction of such alienation asdetermined by the Deputy Commissioner:

Provided that no person who has obtained permission to alienateland under the rule shall, notwithstanding the provisions of Rule 4be eligible for grant of any Government Land.”

We may notice that the period of fifteen (15) years in clause (i)stands substituted by the Notification dated 23.4.2005, with effect from25.4.2005, with twenty-five (25) years, amongst certain otheramendments.

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A3. The appellant purchased the lands from the private respondentsvide sale deeds of different dates, but beyond the period of fifteen (15)years. The sale deeds have been executed by the private respondents,in favour of the appellant through their attorney, who is the wife of theappellant herein. The date of the General Power of Attorney (for short‘GPA’) is stated to be 16.12.1996 (disclosed in pursuance of the orderBdated 5.4.2019) and the consideration is same for each of the sale deeds,i.e., Rs.4.50 lakhs and all such payments have been made in cash. Itmay be noted herein itself that the date of the GPA is before the expiryof fifteen (15) years. It is the case of the appellant that these sale deedswere executed after having obtained the permission of the competentCauthority under Section 4 of the said Act. The said provision reads asunder:

“4. Prohibition of transfer of granted lands. – (1)Notwithstanding anything in any law, agreement, contract orinstrument, any transfer of granted land made either before orDafter the commencement of this Act, in contravention of the termsof the grant of such land or the law providing for such grant, orsub-section (2) shall be null and void and no right, title or interestin such land shall be conveyed or be deemed ever to have conveyedby such transfer.

E(2) No person shall, after the commencement of this Act, transferor acquire by transfer any granted land without the previouspermission of the Government.

(3) The provisions of sub-section (1) and (2) shall apply also tothe sale of any land in execution of a decree or order of a CivilFCourt or any award or order of any other authority.”

4. An application was filed on 10.10.2005 by the villagers allegingthat the sale deeds were illegal and have been executed without priorpermission of the competent authority. This triggered off an inquiry intothe transactions in question.G5. On inquiry, the Assistant Commissioner passed an order dated G5. On inquiry, the Assistant Commissioner passed an order dated5.5.2006, setting aside the sale deeds and directing restoration of thelands to the original allottees under Section 5 of the said Act. The appealpreferred against this order before the Deputy Commissioner wasdismissed vide order dated 14.11.2006. The appellant assailed theseorders in a writ petition filed before the Karnataka High Court, but thatH

endeavour also failed when the learned single Judge dismissed the petitionon 15.12.2008. The writ appeal filed against the same has been dismissedvide impugned order dated 16.10.2009. In the Special Leave Petitions(for short ‘SLPs’) filed against the impugned order, an interim order tomaintain status quo, as on date, was passed on 23.3.2012 and,subsequently, leave was granted on 11.3.2019.

6. We may notice that all the forums have found that thedocuments purporting to indicate prior permission for execution of thesale deeds had been found to be forged and fabricated, and separatecriminal proceedings are stated to be pending against the same.

7. Mr. Dushyant Dave, learned senior counsel for the appellant,in the course of his arguments, actually sought to adopt a completelydifferent plea, which had not been raised in the forums below. The pleais predicated on an interpretation sought to be given to Section 4 of thesaid Act. It was, thus, contended that Rule 9 of the said Rules (albeitenacted under a different statute) makes a reference to the said Act,insofar as the conditions of grant are concerned. In this behalf, ourattention was invited to Rule 9, extracted aforesaid, where the said Ruleprescribes for a non-alienation restriction for a period of five (5) yearsfrom the date of taking possession. This is, however, subject to a provisostipulating that after the initial period of five (5) years, previous permissionmay be obtained subject to such conditions, as may be specified by theDeputy Commissioner, and the permission is subject to the satisfactionthat the alienation is for the purpose of acquiring other land or forimproving the remaining land and that the grantee credits to theGovernment an amount equal to 50 per cent of the market value of suchland as on the date of sanction of such alienation, as determined by theDeputy Commissioner. The contention, thus, formulated is that therestriction is only for a period of fifteen (15) years, and even within thatwindow, beyond the period of five (5) years, on meeting certain conditions,alienation is possible. Thus, it was sought to be contended that there isno question of grant of any permission post the period of fifteen (15)years, as neither the grant nor the aforesaid Rule 9 deals with such aneventuality. One subsequent development, post the enactment of thesaid Rules, but prior to the transaction in question, is the insertion of theproviso vide GSR 169 dated 26.8.1993, with effect from 6.9.1993(extracted aforesaid), which clearly stipulates that the permission to begranted within the window of five (5) to fifteen (15) years would also besubject to the provisions of the said Act.

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A8. In a nutshell, the contention of the learned senior counsel wasthat the issue, whether the permission was or was not granted becomesirrelevant as no such permission was required to be obtained after fifteen(15) years from the date of grant of land.

9. Learned counsel sought to draw strength from the observationsBof this Court in Manchegowda & Ors. v. State of Karnataka & Ors.,[1]more specifically para 24. The said case dealt with a constitutionalchallenge laid to Sections 4 and 5 of the said Act. The challenge wasrepelled. As to the nature of controversy examined by the Court, itwould be apposite to reproduce para 7 of the said judgment, which readsas under:C

“7. The validity of the Act has been challenged mainly because ofthe provisions contained in Sections 4 and 5 of the Act whichpurport to declare transfers of “granted land” made either beforeor after the commencement of the Act in contravention of theterms of the grant of such land or the law providing for such grantDnull and void and confer powers on the authority to take possessionof such land after evicting all persons in possession thereof and torestore such lands to the original grantee or his legal heirs andwhere it is not reasonably practicable to so restore the land to aperson belonging to the Scheduled Castes or Scheduled Tribes inEaccordance with the rules relating to the grant of such land. Itmay be noted that the validity of the Act insofar as it imposesprohibition on transfer of granted land after the commencementof the Act has not been challenged and the principal objection tothe validity of the Act is taken because of the provisions in theAct seeking to nullify the transfers of granted lands effected beforeFthe commencement of the Act.”

10. The aforesaid would, thus, show that the real controversyarose on account of the provisions of the said Act being made applicableeven to grants made prior to the commencement of the Act. It is in thiscontext that the Court observed in para 24 as under:G

“24. Though we have come to the conclusion that the Act is valid,yet, in our opinion, we have to make certain aspects clear. Grantedlands which had been transferred after the expiry of the period ofprohibition do not come within the purview of the Act, and cannot H1 (1984) 3 SCC 301

be proceeded against under the provisions of this Act. Theprovisions of the Act make this position clear, as Sections 4 and 5become applicable only when granted lands are transferred inbreach of the condition relating to prohibition on transfer of suchgranted lands. Granted lands transferred before thecommencement of the Act and not in contravention of prohibitionon transfer are clearly beyond the scope and purview of the presentAct. Also in case where granted lands had been transferred beforethe commencement of the Act in violation of the condition regardingprohibition on such transfer and the transferee who had initiallyacquired only a voidable title in such granted lands had perfectedhis title in the granted lands by prescription by long and continuousenjoyment thereof in accordance with law before thecommencement of the Act, such granted lands would also notcome within the purview of the present Act, as the title of suchtransferees to the granted lands has been perfected before thecommencement of the Act. Since at the date of thecommencement of the Act the title of such transferees had ceasedto be voidable by reason of acquisition of prescriptive rights onaccount of long and continued user for the requisite period, thetitle of such transferees could not be rendered void by virtue ofthe provisions of the Act without violating the constitutionalguarantee. We must, therefore, read down the provisions of theAct by holding that the Act will apply to transfers of granted landsmade in breach of the condition imposing prohibition on transferof granted lands only in those cases where the title acquired bythe transferee was still voidable at the date of the commencementof the Act and had not lost its defeasible character at the datewhen the Act came into force. Transferees of granted lands havinga perfected and not a voidable title at the commencement of theAct must be held to be outside the pale of the provisions of theAct. Section 4 of the Act must be so construed as not to have theeffect of rendering void the title of any transferee which was notvoidable at the date of the commencement of the Act.”

11. The contention, however, of Mr. Dave was that the aforesaidpara indicates that granted lands, which had been transferred after theexpiry of the period of prohibition, do not come within the purview of thesaid Act. These granted lands, transferred before the commencement AB

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Aof the said Act, and not in contravention of the conditions regardingtransfer are clearly beyond the scope and purview of the said Act.Similarly, transfers made prior to the commencement of the said Act inviolation of the conditionsregarding prohibition of transfer, where titleswere perfected before the commencement of the Act, by prescription,by long and continuous enjoyment, in accordance with law, have beenBexcluded from the purview of the said Act.

12. The second limb of the submission of Mr. Dave, learned seniorcounsel for the appellant, was that settled transactions cannot be disturbedafter a long period of time. The transactions were of the year 1997.They were sought to be unsettled after almost eight (8) years, byCpreferring an application in the year 2005. To support this plea, he referredto the following judicial pronouncements:

a.Ibrahimpatnam Taluk Vyavasaya Coolie Sangham v. K.Suresh Reddy & Ors.[2] – the question posed to be decided inthe appeal is referred to in para 1 and the question has beenDanswered in para 19. Both paras 1 and 19 are read as under:

Issues

“1. In all these appeals, the following question of law arisesfor consideration:

“Whether the Collector can exercise suo motu power undersub-section (4) of Section 50-B of the Andhra Pradesh(Telangana Area) Tenancy and Agricultural Lands Act, 1950at any time or such power is to be exercised within areasonable time.”

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“19. It is also necessary to note that the suo motu powerwas sought to be exercised by the Joint Collector after 13-15 years. Section 50-B was amended in the year 1979 byadding sub-section (4), but no action was taken to invalidatethe certificates in exercise of the suo motu power till 1989.There is no convincing explanation as to why the authoritieswaited for such a long time. It appears that sub-section (4)was added so as to take action where alienations or transferswere made to defeat the provisions of the Land CeilingAct. The Land Ceiling Act having come into force on 1-1- G

1975, the authorities should have made inquiries and effortsso as to exercise the suo motu power within reasonabletime. The action of the Joint Collector in exercising suomotu power after several years and not within reasonableper;iod and passing orders cancelling validation certificatesgiven by the Tahsildar, as rightly held by the High Court,could not be sustained.”

The ratio, thus, is that such suo moto powers have to be exercisedwithin a reasonable period of time.

b.Situ Sahu & Ors. v. State of Jharkhand & Ors.[3] – theexercise of power in respect of transactions, which requiredprior sanction of the Deputy Commissioner was againobserved to be one which had to be exercised within areasonable period of time.

c.Chhedi Lal Yadav & Ors. v. Hari Kishore Yadav (Dead)through Legal Representatives & Ors.[4]– the viewexpressed is the same as in the aforesaid two judgments inpara 13, as under:

“13. In our view, where no period of limitation is prescribed,the action must be taken, whether suo motu or on theapplication of the parties, within a reasonable time.Undoubtedly, what is reasonable time would depend on thecircumstances of each case and the purpose of the statute.In the case before us, we are clear that the action is grosslydelayed and taken beyond reasonable time, particularly, inview of the fact that the land was transferred several timesduring this period, obviously, in the faith that it is notencumbered by any rights.”

d.Vivek M. Hinduja v. M. Aswatha & Ors.[5]– the provisionsof the said Act were in issue, where suo moto action wassought to be taken in 1998, in respect of transactions of thevintage 1967, and this was held to be a long delay, which didnot warrant the exercise of such power.

3 (2004) 8 SCC 340

4 (2018) 12 SCC 527

5 Civil Appeal No. 2166/2009, decided on 6.12.2017

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A13. On the other hand, Mr. Huzefa Ahmadi, learned senior counselappearing for the respondents sought to defend the impugned orders.He disputed the interpretation sought to be given to Section 4 of the saidAct, read with Rule 9 of the said Rules, by emphasizing that under Section4(2) of the said Act, there is an absolute embargo to transfer any landwithout previous permission of the Government. The bar being statutoryBin character, it was his submission, that this bar under the said Act prohibitssuch transfer, even though the grant may have put the restriction onlyfor a period of fifteen (15) years. Thus, in case of both, the five (5) tofifteen (15) years’ window, as well as post the fifteen (15) year period,this bar would apply, as the bar is not qualified by any period of the grant,Cunder the said Act.

14. Mr. Ahmadi also contended that Rule 9 of the said Rulescould not in any manner dilute the effect of the provisions of the saidAct, especially as the said Act had come into force subsequently. Theamendment to the proviso of Rule 9 would not imply that permission hasDto be obtained only for the window period of five (5) to fifteen (15)years, while no such permission was required for a period beyond fifteen(15) years.

15. In putting forth this proposition, apart from the plain reading ofthe provision, he sought to support his contention also on the largerEobjective of the said Act, as is available from the Statement of Objectsand Reasons, which reads as under:

“STATEMENT OF OBJECTS AND REASONS

KARNATAKA ACT No.2 of 1979

Karnataka Gazette, Extraordinary, dated 30.6.1978

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The non-alienation clause contained in the existing Land GrantRules and the provision for cancellation of grants where the landis alienated in contravention of the above said provision are foundnot sufficient to help the Scheduled Castes and Scheduled Tribesgrantees whose ignorance and poverty have been exploited bypersons belonging to the affluent and powerful sections to obtainsales or mortgages either for a nominal consideration or for noconsideration at all and they have become the victims ofcircumstances. To fulfil the purposes of the grant, the land even ifit has been alienated, should be restored to the original grantee orhis heirs.

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The Government of India has also been urging the StateGovernment for enacting a legislation to prevent alienation of landsgranted to Scheduled Castes and Scheduled Tribes by Governmenton the lines of the model legislation prepared by it and circulatedto the State Government.

Hence the Bill.”

16. The objective being to prevent exploitation of the ScheduledCastes and Scheduled Tribes persons by more affluent persons, throughthe process of acquisition of the land, there was no reason whatsoeverto read down the provisions of Section 4(2) of the said Act, based on theearlier Rule 9 of the said Rules, enacted under a different enactment.

17. Insofar as the observations in Manchegowda & Ors. v. Stateof Karnataka & Ors[6] are concerned, emphasis was laid on the factthat while learned senior counsel for the appellant sought to read para24 in isolation, the same had to be read in the context of what wassought to be decided, which would be apparent from paras 7 and 14.We have already extracted paras 7 and 24 aforesaid. The plea whichwas sought to be urged is set out in para 14, which reads as under:

“14. What has been strongly urged before us is that the provisionscontained in Section 4 insofar as the same seek to nullify transferseffected before the Act had come into force, are invalid.”

18. It is his submission that, thus, the reading of the three paragraphstogether supports the case advanced by the State Government ratherthan what was sought to be made out by learned senior counsel for theappellant.

19. Insofar as the requirement of prior permission from thecompetent authority is concerned, learned counsel submitted that it wasnever the case of the appellant, prior to the hearing before us, that suchprior permission was not required. In this behalf, he invited our attentionto the pleadings in this behalf, including in the synopsis.

20. Learned counsel also referred to certain judicialpronouncements to advance the proposition that such prior permissionwould be required in the cases of the like kind at hand, including underthe provisions of the said Act. We proceed to discuss the same asunder:

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Aa.Dharma Naika v. Rama Naika & Anr.[7] – the judgmentdeals with the provisions of the said Act. It was observed inparas 17 to 21 and 24 as under:

“17. Keeping these provisions and the objects and reasonsof the Act in mind, let us now deal with the submissionsadvanced by the learned counsel appearing on behalf ofthe appellant. According to the learned counsel for theappellant, having regard to the fact that the transfer of thegranted land was made after the expiry of the prohibitedperiod and before the coming into force of the Act, suchtransfer could not be hit by the provisions contained in Section4(2) of the Act. In this connection, the learned counsel forthe appellant had drawn our attention to Section 3(1)(e) ofthe Act, which defines “transfer”. We have already dealtwith the definition of “transfer” hereinearlier. According tothe learned counsel for the appellant, the prohibition imposedunder Section 4 of the Act would not be applicable to thefacts of the present case. As noted hereinearlier, the learnedcounsel, therefore, submitted that in view of the above, theHigh Court as well as the authorities below had committedan error in holding that the sale deed, having been executedand registered after the commencement of the Act, mustbe found to be null and void and that by the said sale deed,the right, title or interest in the granted land must be restoredby the Assistant Commissioner, in the exercise of his powerunder Section 5 of the Act, to the respondents.

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18. This submission of the learned counsel for the appellantwas contested by the learned counsel appearing for therespondents. According to the learned counsel for therespondents, the transfer of the granted land must be hit bySection 4 of the Act as, admittedly, the sale deed wasexecuted and registered after the commencement of theAct. The learned counsel for the respondents also contendedthat in view of the prohibition contained in Section 4 of theAct, even if the transfer was made before thecommencement of the Act in view of the agreement forsale, still since the sale deed was executed and registered F

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after the commencement of the Act, the same must be hitby Section 4 of the Act and, therefore, no right, title orinterest in such granted land shall be conveyed or be deemedever to have conveyed by such transfer and that being theposition, no interference could be made with the impugnedjudgment as well as with the orders of the authorities.

19. Having heard the learned counsel for the parties andafter examining the objects and reasons and the relevantprovisions of the Act, as noted hereinearlier, in depth and indetail, we have no hesitation to hold that the submissions ofthe learned counsel for the appellant cannot at all beaccepted. It is true that the agreement for sale in respectof the granted land was executed before the commencementof the Act. It is also an admitted position that “transfer”under the Act includes an agreement to sell as well. Keepingthis fact in mind, let us now see whether in view of Section4 of the Act, the transfer of the land, in respect of whichthe agreement for sale was executed before thecommencement of the Act but which was effected afterthe commencement of the Act by execution and registrationof the sale deed, could be said to be null and void. Section4(1) of the Act in clear terms provides that notwithstanding

anything contained in any law, agreement, contract orinstrument, any transfer of granted land made either beforeor after the commencement of the Act in contravention ofeither (a) the terms of grant of such land; or (b) theprovisions of the law providing for such grant; or (c) sub-section (2) of Section 4 of the Act, shall be null and voidand no right, title or interest in such land shall be conveyedor be deemed ever to have conveyed by such transfer.Therefore, under Section 4(1) of the Act, it can be safelyconcluded that this provision declares any transfer of grantedland made either before or after the coming into force ofthe Act, to be null and void if it is in contravention of theconditions specified therein.

20. Section 4(2) of the Act, as noted hereinearlier, dealswith the transfer of granted land after the commencementof the Act i.e. after 1-1-1979. For the purpose of Section A

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4(2), the court must be satisfied that (1) the sale deed wasexecuted and registered after the commencement of theAct, and (2) the same was executed and registered withoutseeking prior permission of the State Government.Therefore, Section 4(2) clearly postulates that a transfereecannot acquire the granted land from the grantee withoutseeking the permission of the Government nor can thegrantee transfer it without seeking prior permission fromthe Government.

21. We have already considered the scheme of the Act asalso the objects and reasons for which it was introduced. Itis an admitted position that the Act was introduced to helpand protect the right, title and interest of the ScheduledCastes and Scheduled Tribes, in respect of the granted lands,whose poverty and status in the society was taken advantageof by some rich and affluent persons who took their landseither by paying a paltry sum or even without payinganything to them.”

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“24. Let us, therefore, consider whether any of theconditions is satisfied in the present case and thereby,whether, the transfer shall be null and void conveying ordeeming ever to have conveyed no right, title or interest ofsuch land by such transfer. So far as the first condition,namely, transfer in contravention of the terms of the grantof such land is concerned, it cannot be disputed in the factsof this case that there was no contravention of the terms ofthe grant of such land as the transfer was admittedly madeafter 15 years of the date of certificate, which was the onlycondition regarding prohibition of transfer in the grant. It isalso not in dispute that there is no contravention of any lawproviding for such grant. Therefore, so far as these twoconditions are concerned, it cannot be disputed that theyare not satisfied. Now, let us take into consideration thethird condition i.e. transfer made in contravention of sub-section (2) of Section 4 of the Act. In respect of thiscondition, a transfer of any granted land made after thecommencement of the Act in contravention of sub-section

(2) shall be null and void and no right, title or interest insuch land shall be conveyed or be deemed ever to haveconveyed by such transfer. Sub-section (2) of Section 4clearly says that:

“4. (2) No person shall, after the commencement of thisAct, transfer or acquire by transfer any granted landwithout the previous permission of the Government.”

Therefore, sub-section (2) of Section 4 prohibits transferor acquisition by transfer, either by the transferor or by thetransferee of any granted land without the previouspermission of the Government. Therefore, after thecommencement of this Act, if any transfer is effected orany person acquires any granted land by transfer, withoutthe previous permission of the Government, such transfershall be null and void and no right, title or interest in suchland shall be conveyed or be deemed ever to have conveyedby such transfer.”

As to how the judgment in Manchegowda & Ors. v. State ofKarnataka & Ors.[8] has to be considered, it was further observed, inpara 27 as under:

“27. Before parting with this judgment, we may note that thelearned counsel for the appellant in support of his contention, asnoted hereinabove, relied on a decision of this Court inManchegowda v. State of Karnataka [(1984) 3 SCC 301]. Thisdecision was also relied on by the learned counsel who appearedfor the appellant before the learned Single Judge of the KarnatakaHigh Court. In our view, the decision of this Court in Manchegowda[(1984) 3 SCC 301] was rightly distinguished by the learned SingleJudge. We are in agreement with the decision of this Court inManchegowda [(1984) 3 SCC 301] but the scope of challenge bythe petitioners in that decision was limited which was stated atpara 7 of the said judgment, as follows: (SCC p. 306, para 7)

“7. … It may be noted that the validity of the Act insofar as itimposes prohibition on transfer of granted land after thecommencement of the Act has not been challenged and theprincipal objection to the validity of the Act is taken because of 8 (supra)

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Athe provisions in the Act seeking to nullify the transfers ofgranted lands effected before the commencement of the Act.”

Therefore, we are in full agreement with the views expressedby the learned Single Judge of the High Court that the scopeof challenge by the petitioners in the aforesaid decision of thisBCourt was limited and, therefore, that decision cannot be ofany help to the appellant in the present case.”

b.Harishchandra Hegde v. State of Karnataka & Ors.[9]Once again, the case pertains to the same said Act andCdiscusses the effect of Manchegowda & Ors. v. State ofKarnataka & Ors.[10] In that context, it has been observedthat Section 4, by virtue of containing a non obstante clause,would apply notwithstanding anything contained in anyagreement or any other Act for the time being in force.

Dc.Amrendra Pratap Singh v. Tej Bahadur Prajapati &Ors.[11] – The provisions of the Orissa Scheduled AreasTransfer of Immovable Property (by Scheduled Tribes)Regulations, 1956 were examined, and in that context,observations were made in para 25 that the State is theEcustodian and trustee of the immovable property of tribals,and is enjoined to see that the tribals remains in possession ofsuch property. In the Regulations in that case, no period oflimitation was prescribed, and the period of twelve (12) yearsin Article 65 of the Limitation Act became irrelevant so far asthe immovable property of a tribal was concerned. Such tribalFneed not file a civil suit which will be governed by the law oflimitation since it is enough if he or anyone on his behalf movesthe State or the State itself moves into action to protect himand restore property to him.

21. Insofar as the factual aspects of the execution of the document,Gstated to be the sale deeds, is concerned, it was highlighted that the landowners were represented by a GPA, who was the wife of the vendee(appellant), and the entire amount was paid in cash. This GPA was 9 (2004) 9 SCC 78010 (supra)H11 (2004) 10 SCC 65

executed even prior to the fifteen (15) yearsperiod, and thus obviously,the nature of transaction was such that it had occurred prior to the fifteen(15) year period, though the formal sale deed was executed after thefifteen (15) yearsperiod. In either eventuality, it was submitted thatprior permission would be required.

22. Another aspect which was sought to be highlighted by Mr.Ahmadi, learned senior counsel was that it was not even open to theappellant to have raised any contention before this Court, much less anew contention, in view of the conduct of the appellant, who grosslymisrepresented facts before this Court. The gravamen of the case ofthe appellant throughout is that they have obtained prior permission andthat such prior permission was required. It was found that the documentspurporting to be prior permission were forged and fabricated, for whichcriminal proceedings are separately pending. However, while makingthe relevant averments in the appeal, it has been categorically statedthat the permission to transfer land had been granted. The documentswhich were found to be forged, were in fact, suppressed. Suchsuppression, it was submitted, would disentitle the appellant to any reliefwhatsoever.

23. In support of his submission, learned senior counsel sought torefer to certain judicial pronouncements on the effect of suppression asunder:

a. K.D. Sharma v. Steel Authority of India Limited &Ors.[12] – In para 37 of this judgment, a reference was made tothe proposition as propounded by the King’s Bench in thefollowing terms:

“37. In Kensington Income Tax Commrs. [(1917) 1 KB486: 86 LJKB 257: 116 LT 136 (CA)] Viscount Reading,

C.J. observed: (KB pp. 495-96)

“… Where an ex parte application has been made to thisCourt for a rule nisi or other process, if the Court comes tothe conclusion that the affidavit in support of the applicationwas not candid and did not fairly state the facts, but statedthem in such a way as to mislead the Court as to the truefacts, the Court ought, for its own protection and to preventan abuse of its process, to refuse to proceed any further A

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Awith the examination of the merits. This is a power inherentin the Court, but one which should only be used in caseswhich bring conviction to the mind of the Court that it hasbeen deceived. Before coming to this conclusion a carefulexamination will be made of the facts as they are and asthey have been stated in the applicant’s affidavit, andBeverything will be heard that can be urged to influence theview of the Court when it reads the affidavit and knowsthe true facts. But if the result of this examination andhearing is to leave no doubt that the Court has beendeceived, then it will refuse to hear anything furtherCfrom the applicant in a proceeding which has only beenset in motion by means of a misleading affidavit.”

(emphasis supplied)”

The aforesaid principle was observed to have been followedwhile dealing with prerogative writs, whether under Article 32 orDArticle 226 of the Constitution of India, and a litigant cannot bepermitted to play “hide and seek” or to “pick and choose” thefacts he likes to disclose, and to suppress or not to disclose otherfacts. Thus, a party with “soiled hands” is not liable to beentertained.

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b.A. Shanmugam v. Ariya Kshatriya Rajakula VamsathuMadalaya Nandhavana Paripalanai Sangam representedby its President & Ors.[13]

c.Hari Narain v. Badri Das[14] - the leave granted was revokedon the basis that where such leave has been obtained byFsuppression of facts, the mere fact that leave was granted,would not come in the way of the Court disentitling theappellant to relief.

24. We have examined the aforesaid elaborate contentionsadvanced by both the learned senior counsel for the parties. In ourGview, the matter is in a very narrow compass.

25. Turning to the last aspect first, i.e., suppression of materialfact, we must observe that the manner of dealing with facts by theappellant does leave much to be desired. There ought to have been full 13 (2012) 6 SCC 430H14 (1964) 2 SCR 203

disclosure of documents. However, we cannot be oblivious of the factthat all the orders below are predicated on a reasoning that while theappellant sought to make out a case that permission had been granted,no such permission had actually been granted by the competent authority,and the documents furnished in this behalf were found to be forged andfabricated. The criminal proceedings, however, are still pending quathat aspect, and we would not like to delve in the matter any further, onthis aspect, which is really in the nature of a preliminary objection by therespondent-State. It is not necessary to non-suit the appellant on thisground itself, as we feel that the merits of the matter itself ought to bedealt with.

26. There is substance in the contention of the respondent-Statethat the appellant had throughout sought to make out a case based onprior permission by the competent authority. It was nobody’s case thatpermission was not required to be obtained. At this stage of the civilappeal, without any pleadings being there, it is not even really open tothe appellant to have pleaded the interpretation they so sought to plead.This really cannot be categorized as a legal plea alone, and that tooraised at the fifth level of scrutiny in the hierarchy of proceedings. Theappellant, really faced with a factual situation where the permissions donot exist, now sought to build another bridge to contend that be that as itmay, no permission is required. Such a plea cannot be countenanced.

27. If we analyze the aforesaid plea also, we find no merit in thesame. We cannot lose sight of the objective with which the said Actwas enacted. The non-alienation clause existing in the said Rules, andincorporated in the grants, was found to be inadequate to protect theinterests of Scheduled Castes and Scheduled Tribes, who were givenland owing to their ignorance and poverty. Influential and powerfulsections of society were stated to be obtaining sales and mortgages forconsideration, and Scheduled Castes and Scheduled Tribes became victimsof circumstances. The objective of the State Government in enactingthe said Act was to prevent such misuse and, therefore, in categoricalterms, transfer with permission was prescribed. This would be de horsthe terms of the grant or the said Rules. Thus, whether it was a casewhere it was within the window of five (5) to fifteen (15) years, or theperiod beyond fifteen (15) years, such permission would be required.

28. No doubt Rule 9 of the said Rules, enacted under a differentenactment, prior to the enactment of the said Act (and thereafter even A

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Aamended), does contemplate transfer between the window of five (5) tofifteen (15) years on certain terms and conditions, which are required tobe satisfied by the Deputy Commissioner. There is, in fact, a prohibitionin grant of such permission until and unless there is satisfaction of theDeputy Commissioner that the alienation is for the purpose of acquiringother land, or for improving the remaining land and that the granteeBcredits to Government an amount equal to fifty percent of the marketvalue of such land as on the date of sanction of such alienation. Thus,more rigorous terms have been put for transfer within the window offive (5) to fifteen (15) years.

29. The reason for the competent authority to arrive at a decisionCwhether to grant permission or not after the period of fifteen (15) yearsmay or may not be coloured by such considerations. But certainly, hemay satisfy himself that the members of the Scheduled Castes andScheduled Tribes only, who have been allotted the land, are not taken fora ride, and it is possibly in their best interest for recorded reasons thatDsuch permission should be granted. The wordings of Section 4(2) of thesaid Act are quite clear in its terms.

30. Section 4 of the said Act, dealing with prohibition of transferof granted land, in sub-section (1), begins with a non obstante clause.It is notwithstanding anything in any agreement, contract or instrument,Eor for that matter in any law. Section 11 of the said Act further enforcesthis by giving the said Act an overriding effect over any other law. Thesaid Section 11 reads as under:

“11. Act to override other laws.- The provisions of this Actshall have effect notwithstanding anything inconsistent therewithFcontained in any other law for the time being in force or anycustom, usage or contract or any decree or order of a Court,Tribunal or other Authority.”

31. The aforesaid Section is applicable for grants made eitherbefore or after the commencement of the Act. The terms of the grantGcannot be contravened, but the last part of sub-section (1) of Section 4of the said Act makes any transfer in violation of sub-section (2) alsonull and void. Sub-section (2) of Section 4 of the said Act is crisp andclear in its terms, putting an absolute ban on transfer after thecommencement of the Act, without previous permission of theGovernment. Thus, a bare reading of the provision makes it abundantlyH

clear that it brooks no two interpretations. After the period of fifteen(15) years also, thus, permission was required to be taken.

32. The legal position enunciated in various judicial pronouncementsis also very clear in this behalf. The observations in Manchegowda &Ors. v. State of Karnataka & Ors.,[15]in para 24, cannot be taken out ofcontext, as what would have to be scrutinized is the proposition soughtto be determined in that case. The validity of the Act had been challengedmainly because the provisions contained in Sections 4 and 5 of the Actpurported to declare transfer of “granted land” made before or after thecommencement of the Act, in contravention of the terms of the grant ofsuch land or law, null and void. In para 14, what was urged before theCourt has been set out, i.e., the challenge being to Section 4 insofar as itseeks to nullify the transfer effected before the Act came into force. Inthe conspectus of the aforesaid observations, para 24 has to be read.

33. The aforesaid aspect is really not in doubt, in view of thesubsequent judicial pronouncements, more specifically in Dharma Naikav. Rama Naika & Anr.[16] The context of the observations made inManchegowda v. State of Karnataka[17] has been clearly enunciated.It is noted that the agreements for sale were executed before thecommencement of the Act. The sale deed was executed afterwards.In that context it was observed that it could be safely concluded thatprovisions of Section 4(1) declared any transfer of land made eitherbefore or after the commencement of the said Act to be null and void ifit contravened the conditions specified therein. Section 4(2) was held tomake it abundantly clear that if the sale deed was executed and registeredafter the commencement of the said Act, and was without priorpermission of the State Government, such transfer would be invalid andnull and void. The scheme of the said Act was also discussed in detailwith the objective with which it was enacted. Before parting with thejudgment, this Court observed in para 27 that Manchegowda & Ors. v.State of Karnataka & Ors.[18] has to be read in the context of the limitedscope, as enunciated in para 7 of that judgment. Nothing more is reallyleft to be said after this judgment, though there are certain other judicialpronouncements referred to aforesaid, cited by learned counsel for theState. Suffice to say that a delay of eight (8) years by itself cannot 15 (supra)

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Acome in the way of the competent authority taking the action, as limitationprinciples would not apply, as observed in Amrendra Pratap Singh v.Tej Bahadur Prajapati & Ors.[19] The cases referred to by learnedsenior counsel for the appellant involved huge gaps of around twenty(20) to thirty (30) years, which is not so in the present case.

B34. The period of eight (8) years cannot be said to be such, as toamount to such delay and laches as would make the action void,considering that it is in respect of a beneficial legislation for the ScheduledCastes and Scheduled Tribes community.

35. We may also add that the documents of transfer executedCthemselves, also do not evoke much confidence. As observed aforesaid,complete consideration is paid in cash. Further, the documents of transferwere executed by the allottee, but through the attorney, who is noneother than the wife of the appellant. The GPA was executed prior to theperiod of fifteen (15) years, and it is inconceivable that the same wouldhave been executed without consideration. It does seem to suggest thatDfor all practical terms, the alleged transfer took place prior to the lapseof the fifteen (15) year period, but the sale deed was executed aftersuch fifteen (15) year period. Be that as it may, in any case, it would notmake any difference to the result of the case.

36. We are of the view that the courts below committed no error,Eand the competent authority has acted within its jurisdiction to nullify thetransactions which are contrary to the statutory provisions of Section4(2) of the said Act, and the manner of execution itself raises manydoubts.

37. The appeals are accordingly dismissed, leaving the parties toFbear their own costs.

Kalpana K. Tripathy

Appeals dismissed.

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