Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 2976-2983 OF 2019

SATYAN  ….Appellant

Versus

DEPUTY COMMISSIONER & ORS. ….Respondents

J U D G M E N T

SANJAY KISHAN KAUL, J.

1. The State Government of Karnataka granted lands to members

of  the  Scheduled  Caste  and  Scheduled  Tribe  community,  free  of

charge, to assist in their economic empowerment and to provide them

with opportunity for self-employment through agriculture, the lands

granted  being  agricultural  lands.   In  the  early  1980s,  the  private

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respondents  No.3  were  made  beneficiaries  of  such  grants  on

12.8.1982, of lands measuring 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 lands have been allotted is not defeated.  We

are concerned, in the present appeals, with the transfer of these lands

to  the  appellant  by  all  the  eight  (8)  beneficiaries,  in  August  and

September, 1997, which were sought to be annulled by the orders of

the competent authority, under The Karnataka Scheduled Castes and

Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978

(hereinafter referred to as the ‘said Act’).

2. The  grants  made  are  on  similar  terms,  and  for  the  present

controversy, clause 8 of the grant is material, which puts a condition

of  non-alienation  for  a  period  of  fifteen  (15)  years.   This  clause

appears to be in pursuance of Rule 9(i) of the Karnataka Land Grant

Rules, 1969 (hereinafter referred to as the ‘said Rules’), formulated in

pursuance of the powers conferred under Section 197 of the Karnataka

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Land Revenue Act, 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 these rules  (for  agricultural  purposes)  shall  be  subject  to  the following conditions namely:-  

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

Provided that  he  may,  after  a  period of  five  years,  with  the previous  permission  of,  and  subject  to  the  provisions  of  the Karnataka Scheduled Castes and Scheduled Tribes ( Prohibition of Transfer of Certain Lands) Act, 1978 (Karnataka Act 2 of 1979), and 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 other land or for improving the remaining land and the grantee credits to Government an amount equal to fifty percent of the market value of such land as on the date of sanction  of  such  alienation  as  determined  by  the  Deputy Commissioner:

Provided  that  no  person  who  has  obtained  permission  to alienate  land  under  the  rule  shall,  notwithstanding  the provisions of Rule 4 be 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 from 25.4.2005, with twenty-five (25) years, amongst certain

other amendments.

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3. The appellant purchased the lands from the private respondents

vide 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 the

appellant herein.  The date of the General Power of Attorney (for short

‘GPA’) is stated to be 16.12.1996 (disclosed in pursuance of the order

dated 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.  It may be noted herein itself that the date of the GPA is before

the expiry of fifteen (15) years.  It is the case of the appellant that

these sale deeds were executed after having obtained the permission

of the competent authority under Section 4 of the said Act.  The said

provision reads as under:

“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 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.

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(2)  No  person  shall,  after  the  commencement  of  this  Act, transfer  or  acquire  by  transfer  any  granted  land  without  the previous permission of the Government.

(3) The provisions of sub-section (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.”

4. An application was filed on 10.10.2005 by the villagers alleging

that the sale deeds were illegal and have been executed without prior

permission of the competent authority.  This triggered off an inquiry

into the transactions in question.

5. On inquiry, the Assistant Commissioner passed an order dated

5.5.2006, setting aside the sale deeds and directing restoration of the

lands to the original allottees under Section 5 of the said Act.  The

appeal preferred against this order before the Deputy Commissioner

was dismissed  vide order dated 14.11.2006.  The appellant assailed

these orders in a writ petition filed before the Karnataka High Court,

but  that  endeavour  also  failed  when  the  learned  single  Judge

dismissed the petition on 15.12.2008.  The writ appeal filed against

the same has been dismissed vide impugned order dated 16.10.2009.

In  the  Special  Leave  Petitions  (for  short  ‘SLPs’)  filed  against  the

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impugned order, an interim order to maintain 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  the

documents purporting to indicate prior permission for execution of the

sale deeds had been found to be forged and fabricated, and separate

criminal 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 completely

different plea, which had not been raised in the forums below.  The

plea is predicated on an interpretation sought to be given to Section 4

of the said Act.  It was, thus, contended that Rule 9 of the said Rules

(albeit enacted under a different statute) makes a reference to the said

Act, insofar as the conditions of grant are concerned.  In this behalf,

our attention was invited to Rule 9, extracted aforesaid, where the said

Rule prescribes for a non-alienation restriction for a period of five (5)

years from the date of taking possession.  This is, however, subject to

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a  proviso  stipulating  that  after  the  initial  period  of  five  (5)  years,

previous permission may be obtained subject to such conditions, as

may be specified by the Deputy Commissioner, and the permission is

subject  to  the  satisfaction  that  the  alienation  is  for  the  purpose  of

acquiring other land or for improving the remaining land and that the

grantee credits to the Government an amount equal to 50 per cent of

the  market  value  of  such  land  as  on  the  date  of  sanction  of  such

alienation,  as  determined  by  the  Deputy  Commissioner.   The

contention, thus, formulated is that the restriction is only for a period

of fifteen (15) years, and even within that window, beyond the period

of five (5) years, on meeting certain conditions, alienation is possible.

Thus, it was sought to be contended that there is no 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 an eventuality.  One

subsequent  development,  post  the enactment  of  the said Rules,  but

prior to the transaction in question, is the insertion of the proviso vide

GSR  169  dated  26.8.1993,  with  effect  from  6.9.1993  (extracted

aforesaid), which clearly stipulates that the permission to be granted

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within  the  window of  five  (5)  to  fifteen (15)  years  would also  be

subject to the provisions of the said Act.

8. In a nutshell, the contention of the learned senior counsel was

that the issue, whether the permission was or was not granted becomes

irrelevant  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 observations

of this Court in Manchegowda & Ors. v. State of Karnataka & Ors.,1

more specifically para 24.  The said case dealt with a constitutional

challenge laid to Sections 4 and 5 of the said Act.  The challenge was

repelled.  As to the nature of controversy examined by the Court, it

would be apposite to reproduce para 7 of the said judgment, which

reads as under:

“7. The validity of the Act has been challenged mainly because of the  provisions  contained  in  Sections  4  and 5  of  the  Act  which purport to declare transfers of “granted land” made either before or after the commencement of the Act in contravention of the terms of the grant of such land or the law providing for such grant null and void and confer powers on the authority to take possession of such land after evicting all persons in possession thereof and to restore

1 (1984) 3 SCC 301

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such lands to the original grantee or his legal heirs and where it is not  reasonably  practicable  to  so  restore  the  land  to  a  person belonging  to  the  Scheduled  Castes  or  Scheduled  Tribes  in accordance with the rules relating to the grant of such land. It may be  noted  that  the  validity  of  the  Act  insofar  as  it  imposes prohibition on transfer of granted land after the commencement of the Act has not been challenged and the principal objection to the validity of the Act is taken because of the provisions in the Act seeking to nullify the transfers of granted lands effected before the commencement of the Act.”

10. The aforesaid would, thus, show that the real controversy arose

on account of the provisions of the said Act being made applicable

even to grants made prior to the commencement of the Act.  It is in

this context that the Court observed in para 24 as under:

“24. Though we have come to the conclusion that the Act is valid, yet, in our opinion, we have to make certain aspects clear. Granted lands which had been transferred after the expiry of the period of  prohibition do not come within the purview of the Act, and cannot be proceeded against under the provisions of this Act. The provisions of the Act make this position clear, as Sections 4 and 5 become applicable only when granted lands are transferred in breach of the condition relating to prohibition on  transfer  of  such  granted  lands.  Granted  lands  transferred before the commencement of the Act and not in contravention of  prohibition  on  transfer  are  clearly  beyond  the  scope  and purview of the present Act. Also in case where granted lands had been transferred before the commencement of the Act in violation of the condition regarding prohibition on such transfer and the transferee who had initially acquired only a voidable

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title in such granted lands had perfected his title in the granted lands by prescription by long and continuous enjoyment thereof in accordance with law before the commencement of the Act, such granted lands would also not come within the purview of the present Act, as the title of such transferees to the granted lands has been perfected before the commencement of the Act. Since at the date of the commencement of the Act the title of such  transferees  had  ceased  to  be  voidable  by  reason  of acquisition  of  prescriptive  rights  on  account  of  long  and continued  user  for  the  requisite  period,  the  title  of  such transferees  could  not  be  rendered  void  by  virtue  of  the provisions  of  the  Act  without  violating  the  constitutional guarantee. We must, therefore, read down the provisions of the Act by holding that the Act will apply to transfers of granted lands made in breach of the condition imposing prohibition on transfer  of  granted  lands  only  in  those  cases  where  the  title acquired by the transferee was still voidable at the date of the commencement  of  the  Act  and  had  not  lost  its  defeasible character at the date when the Act came into force. Transferees of granted lands having a perfected and not a voidable title at the commencement of the Act must be held to be outside the pale of the provisions of the Act. Section 4 of the Act must be so construed as not to have the effect of rendering void the title of  any transferee  which was  not  voidable  at  the  date  of  the commencement of the Act.”

11. The contention, however, of Mr. Dave was that the aforesaid

para indicates that granted lands, which had been transferred after the

expiry of the period of prohibition, do not come within the purview of

the  said  Act.  These  granted  lands,  transferred  before  the

commencement  of  the  said  Act,  and  not  in  contravention  of  the

conditions  regarding  transfer  are  clearly  beyond  the  scope  and

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purview  of  the  said  Act.   Similarly,  transfers  made  prior  to  the

commencement  of  the  said  Act  in  violation  of  the  conditions

regarding prohibition of transfer,  where titles were perfected before

the  commencement  of  the  Act,  by  prescription,  by  long  and

continuous enjoyment, in accordance with law, have been excluded

from the purview of the said Act.

12. The second limb of the submission of Mr. Dave, learned senior

counsel  for  the  appellant,  was  that  settled  transactions  cannot  be

disturbed after a long period of time.  The transactions were of the

year 1997.  They were sought to be unsettled after almost eight (8)

years, by preferring an application in the year 2005.  To support this

plea, he referred to the following judicial pronouncements:

a. Ibrahimpatnam  Taluk  Vyavasaya  Coolie  Sangham  v.  K.

Suresh Reddy & Ors.2 – the question posed to be decided in the

appeal  is  referred  to  in  para  1  and  the  question  has  been

answered in para 19.  Both paras 1 and 19 are read as under:

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

2 (2003) 7 SCC 667

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

…. …. …. …. ….

“19. It is also necessary to note that the suo motu power was sought  to  be  exercised  by the  Joint  Collector  after  13-15 years.  Section  50-B  was  amended  in  the  year  1979  by adding sub-section (4), but no action was taken to invalidate the certificates in exercise of the suo motu power till 1989. There is no convincing explanation as to why the authorities waited for such a long time. It appears that sub-section (4) was added so as to take action where alienations or transfers were made to defeat the provisions of the Land Ceiling Act. The Land Ceiling Act having come into force on 1-1-1975, the authorities should have made inquiries and efforts so as to exercise the suo motu power within reasonable time. The action of the Joint Collector in exercising  suo motu power after  several  years  and  not  within  reasonable  per;iod  and passing orders cancelling validation certificates given 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 exercised

within a reasonable period of time.

b. Situ Sahu & Ors. v. State of Jharkhand & Ors.3 – the exercise

of  power  in  respect  of  transactions,  which  required  prior

3 (2004) 8 SCC 340

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sanction of the Deputy Commissioner was again observed to be

one which had to be exercised within a reasonable period of

time.

c. Chhedi  Lal  Yadav  &  Ors.  v.  Hari  Kishore  Yadav  (Dead)

through Legal Representatives & Ors.4– the view expressed is

the same as in the aforesaid two judgments in para 13, as under:

“13. In our view, where no period of limitation is prescribed, the  action  must  be  taken,  whether  suo  motu or  on  the application  of  the  parties,  within  a  reasonable  time. Undoubtedly, what is reasonable time would depend on the circumstances of each case and the purpose of the statute. In the case before us,  we are clear that  the action is grossly delayed and taken beyond reasonable time, particularly, in view of the fact that the land was transferred several times during  this  period,  obviously,  in  the  faith  that  it  is  not encumbered by any rights.”

d. Vivek M. Hinduja v. M. Aswatha & Ors.5– the provisions of the

said Act were in issue, where suo moto action was sought to be

taken in 1998, in respect of transactions of the vintage 1967,

and this was held to be a long delay, which did not warrant the

exercise of such power.

4 (2018) 12 SCC 527 5 Civil Appeal No. 2166/2009, decided on 6.12.2017

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13. On the other hand, Mr. Huzefa Ahmadi, learned senior counsel

appearing for the respondents sought to defend the impugned orders.

He disputed the interpretation sought to be given to Section 4 of the

said  Act,  read with Rule  9 of  the said  Rules,  by emphasizing that

under Section 4(2) of the said Act, there is an absolute embargo to

transfer  any  land  without  previous  permission  of  the  Government.

The bar being statutory in character, it was his submission, that this

bar under the said Act prohibits such transfer, even though the grant

may have put the restriction only for a period of fifteen (15) years.

Thus, in case of both, the five (5) to fifteen (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, under the said Act.

14. Mr. Ahmadi also contended that Rule 9 of the said Rules could

not in any manner dilute the effect of the provisions of the said Act,

especially  as  the said  Act  had come into force  subsequently.   The

amendment to the proviso of Rule 9 would not imply that permission

has to 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.

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15. In putting forth this proposition, apart from the plain reading of

the provision, he sought to support his contention also on the larger

objective of the said Act, as is available from the Statement of Objects

and Reasons, which reads as under:

“STATEMENT OF OBJECTS AND REASONS KARNATAKA ACT No.2 of 1979

Karnataka Gazette, Extraordinary, dated 30.6.1978

The non-alienation clause contained in the existing Land Grant Rules and the  provision for  cancellation of  grants  where the land is alienated in contravention of the above said provision are  found  not  sufficient  to  help  the  Scheduled  Castes  and Scheduled Tribes grantees whose ignorance and poverty have been  exploited  by  persons  belonging  to  the  affluent  and powerful  sections  to  obtain  sales  or  mortgages  either  for  a nominal consideration or for no consideration at all  and they have  become  the  victims  of  circumstances.  To  fulfil  the purposes of the grant,  the land even if  it  has been alienated, should be restored to the original grantee or his heirs.

The  Government  of  India  has  also  been  urging  the  State Government for enacting a legislation to prevent alienation of lands  granted  to  Scheduled  Castes  and  Scheduled  Tribes  by Government on the lines of the model legislation prepared by it and circulated to the State Government.

Hence the Bill.”

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16. The objective being to prevent exploitation of  the Scheduled

Castes  and  Scheduled  Tribes  persons  by  more  affluent  persons,

through the process of acquisition of the land, there was no reason

whatsoever to read down the provisions of Section 4(2) of the said

Act, based on the earlier Rule 9 of the said Rules, enacted under a

different enactment.

17. Insofar as the observations in Manchegowda & Ors. v. State of

Karnataka & Ors6 are concerned, emphasis was laid on the fact that

while learned senior counsel for the appellant sought to read para 24

in isolation, the same had to be read in the context of what was sought

to be decided, which would be apparent from paras 7 and 14.  We

have already extracted paras 7 and 24 aforesaid.  The plea which was

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 provisions contained in Section 4 insofar as the same seek to nullify transfers effected before the Act had come into force, are invalid.”

18. It  is  his  submission  that,  thus,  the  reading  of  the  three

paragraphs  together  supports  the  case  advanced  by  the  State

6 (supra)

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Government rather than what was sought to be made out by learned

senior counsel for the appellant.

19. Insofar  as  the  requirement  of  prior  permission  from  the

competent  authority is concerned,  learned counsel  submitted that  it

was never the case of the appellant, prior to the hearing before us, that

such prior permission was not required.  In this behalf, he invited our

attention to the pleadings in this behalf, including in the synopsis.

20. Learned  counsel  also  referred  to  certain  judicial

pronouncements to advance the proposition that such prior permission

would be required in  the cases of  the like kind at  hand, including

under the provisions of the said Act.  We proceed to discuss the same

as under:

a. Dharma Naika v. Rama Naika & Anr.7 – the judgment deals

with the provisions of the said Act.  It was observed in paras 17

to 21 and 24 as under:

“17. Keeping these provisions and the objects and reasons of the  Act  in  mind,  let  us  now  deal  with  the  submissions advanced by the learned counsel appearing on behalf of the

7 (2008) 14 SCC 517

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appellant. According to the learned counsel for the appellant, having regard to the fact that the transfer of the granted land was  made  after  the  expiry  of  the  prohibited  period  and before the coming into force of the Act, such transfer could not be hit by the provisions contained in Section 4(2) of the Act. In this connection, the learned counsel for the appellant had drawn our attention to Section 3(1)(e) of the Act, which defines “transfer”. We have already dealt with the definition of “transfer” hereinearlier. According to the learned counsel for the appellant, the prohibition imposed under Section 4 of the Act would not be applicable to the facts of the present case. As noted hereinearlier, the learned counsel, therefore, submitted that in view of the above, the High Court as well as the authorities below had committed an error in holding that the sale deed, having been executed and registered after the commencement of the Act, must be found to be null and void and that by the said sale deed, the right, title or interest in  the  granted  land  must  be  restored  by  the  Assistant Commissioner, in the exercise of his power under Section 5 of the Act, to the respondents.

18. This submission of the learned counsel for the appellant was  contested  by  the  learned  counsel  appearing  for  the respondents.  According  to  the  learned  counsel  for  the respondents, the transfer of the granted land must be hit by Section  4  of  the  Act  as,  admittedly,  the  sale  deed  was executed and registered after the commencement of the Act. The learned counsel for the respondents also contended that in view of the prohibition contained in Section 4 of the Act, even if the transfer was made before the commencement of the Act in view of the agreement for sale, still since the sale deed was executed and registered after the commencement of the Act, the same must be hit by Section 4 of the Act and, therefore, no right, title or interest in such granted land shall be conveyed or be deemed ever to have conveyed by such transfer and that being the position, no interference could be made with the impugned judgment as well as with the orders of the authorities.

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19.  Having heard  the  learned  counsel  for  the  parties  and after  examining  the  objects  and  reasons  and  the  relevant provisions of the Act, as noted hereinearlier, in depth and in detail, we have no hesitation to hold that the submissions of the  learned  counsel  for  the  appellant  cannot  at  all  be accepted. It is true that the agreement for sale in respect of the granted land was executed before the commencement of the Act. It is also an admitted position that “transfer” under the Act includes an agreement to sell as well. Keeping this fact in mind, let us now see whether in view of Section 4 of the  Act,  the  transfer  of  the  land,  in  respect  of  which the agreement for sale was executed before the commencement of the Act but which was effected after the commencement of the Act by execution and registration of the sale deed, could be said to be null and void. Section 4(1) of the Act in clear  terms  provides  that  notwithstanding  anything contained in any law, agreement, contract or instrument, any transfer  of  granted  land  made  either  before  or  after  the commencement of the Act in contravention of either (a) the terms of grant of such land; or (b) the provisions of the law providing for such grant; or (c) sub-section (2) of Section 4 of  the  Act,  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.  Therefore,  under  Section 4(1) of the Act, it can be safely concluded that this provision declares any transfer of granted land made either before or after the coming into force of the Act, to be null and void if it is in contravention of the conditions specified therein.

20. Section 4(2) of the Act, as noted hereinearlier, deals with the transfer of granted land after the commencement of the Act i.e. after 1-1-1979. For the purpose of Section 4(2), the court must be satisfied that (1) the sale deed was executed and registered after the commencement of the Act, and (2) the same was executed and registered without seeking prior permission of the State Government. Therefore, Section 4(2) clearly  postulates  that  a  transferee  cannot  acquire  the granted  land  from  the  grantee  without  seeking  the

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permission of the Government nor can the grantee transfer it without seeking prior permission from the Government.

21. We have already considered the scheme of the Act as also the objects and reasons for which it was introduced. It is an admitted position that the Act was introduced to help and protect the right, title and interest of the Scheduled Castes and Scheduled Tribes, in respect of the granted lands, whose poverty and status in the society was taken advantage of by some rich and affluent persons who took their lands either by paying a paltry sum or even without paying anything to them.”

…. …. …. …. ….

“24.  Let  us,  therefore,  consider  whether  any  of  the conditions  is  satisfied  in  the  present  case  and  thereby, whether,  the  transfer  shall  be null  and void conveying or deeming ever to have conveyed no right, title or interest of such  land  by  such  transfer.  So  far  as  the  first  condition, namely, transfer in contravention of the terms of the grant of such land is concerned, it cannot be disputed in the facts of this case that there was no contravention of the terms of the grant of such land as the transfer was admittedly made after 15  years  of  the  date  of  certificate,  which  was  the  only condition regarding prohibition of transfer in the grant. It is also not in dispute that there is no contravention of any law providing  for  such  grant.  Therefore,  so  far  as  these  two conditions are concerned, it cannot be disputed that they are not satisfied. Now, let us take into consideration the third condition i.e. transfer made in contravention of sub-section (2) of Section 4 of the Act. In respect of this condition, a transfer of any granted land made after the commencement of the Act in contravention of 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. Sub-section (2) of Section 4 clearly says that:

20

“4. (2) No person shall, after the commencement of this Act,  transfer or  acquire by transfer any granted land  without  the  previous  permission  of  the Government.”

Therefore, sub-section (2) of Section 4 prohibits transfer or acquisition  by  transfer,  either  by  the  transferor  or  by  the transferee  of  any  granted  land  without  the  previous permission  of  the  Government.  Therefore,  after  the commencement of this Act, if any transfer is effected or any person  acquires  any granted  land by transfer,  without  the previous permission of the Government, such transfer 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.”

As to how the judgment in Manchegowda & Ors. v. State of

Karnataka & Ors.8 has to be considered, it was further observed, in para

27 as under:

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

8 (supra)

21

“7. … It may be noted that the validity of the Act insofar as it imposes prohibition on transfer of granted land after the commencement of the Act has not been challenged and the principal objection to the validity of the Act is taken  because  of  the  provisions  in  the  Act  seeking  to nullify the transfers of granted lands effected before the commencement of the Act.”

Therefore,  we  are  in  full  agreement  with  the  views expressed by the learned Single Judge of the High Court that  the  scope  of  challenge  by  the  petitioners  in  the aforesaid  decision  of  this  Court  was  limited  and, therefore,  that  decision  cannot  be  of  any  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 and discusses the

effect of Manchegowda & Ors. v. State of Karnataka & Ors.10

In that context, it has been observed that Section 4, by virtue of

containing a non obstante clause, would apply notwithstanding

anything contained in any agreement or any other Act for the

time being in force.

c. Amrendra Pratap Singh v. Tej Bahadur Prajapati & Ors.11 –

The  provisions  of  the  Orissa  Scheduled  Areas  Transfer  of

9 (2004) 9 SCC 780 10 (supra) 11 (2004) 10 SCC 65

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Immovable Property (by Scheduled Tribes) Regulations, 1956

were examined, and in that context, observations were made in

para  25  that  the  State  is  the  custodian  and  trustee  of  the

immovable property of tribals, and is enjoined to see that the

tribals  remains  in  possession  of  such  property.  In  the

Regulations in that case, no period of limitation was prescribed,

and  the  period  of  twelve  (12)  years  in  Article  65  of  the

Limitation  Act  became  irrelevant  so  far  as  the  immovable

property of a tribal was concerned.  Such tribal need not file a

civil suit which will be governed by the law of limitation since

it is enough if he or anyone on his behalf moves the State or the

State  itself  moves  into  action  to  protect  him  and  restore

property to him.

21. Insofar as the factual aspects of the execution of the document,

stated to be the sale deeds, is concerned, it was highlighted that the

land owners were represented by a GPA, who was the wife of the

vendee (appellant), and the entire amount was paid in cash.  This GPA

was executed  even prior  to  the  fifteen  (15)  years period,  and thus

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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 the fifteen (15) years period.  In either eventuality, it

was submitted that prior 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 the

appellant to have raised any contention before this Court, much less a

new contention, in view of the conduct of the appellant, who grossly

misrepresented facts before this Court.  The gravamen of the case of

the appellant throughout is that they have obtained prior permission

and that such prior permission was required.  It was found that the

documents  purporting  to  be  prior  permission  were  forged  and

fabricated,  for  which  criminal  proceedings  are  separately  pending.

However, while making the relevant averments in the appeal, it has

been categorically stated that the permission to transfer land had been

granted.  The documents which were found to be forged, were in fact,

suppressed.  Such suppression, it was submitted, would disentitle the

appellant to any relief whatsoever.

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23. In support of his submission, learned senior counsel sought to

refer to certain judicial pronouncements on the effect of suppression

as under:

a. K.D. Sharma v. Steel Authority of India Limited & Ors.12 – In

para  37  of  this  judgment,  a  reference  was  made  to  the

proposition  as  propounded  by  the  King’s  Bench  in  the

following terms:

“37. In Kensington Income Tax Commrs. [(1917) 1 KB 486: 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 this Court for a rule nisi or other process, if the Court comes to the conclusion that the affidavit in support of the application was not candid and did not fairly state the facts, but stated them in such a way as to mislead the Court as to the true facts, the Court ought, for its own protection and to prevent an abuse of its process, to refuse to proceed any further with the examination of the merits. This is a power inherent in the Court,  but one which should only be used in cases which bring conviction to the mind of the Court that it has been deceived.  Before  coming  to  this  conclusion  a  careful examination will be made of the facts as they are and as they have been stated in the applicant's affidavit, and everything will be heard that can be urged to influence the view of the Court when it reads the affidavit and knows the true facts. But if the result of this examination and hearing is to leave no  doubt  that  the  Court  has  been  deceived,  then  it  will refuse  to  hear  anything  further  from  the  applicant  in  a

12 (2008) 12 SCC 481

25

proceeding which has only been set in motion by means of a misleading affidavit.”

(emphasis supplied)”

The aforesaid principle was observed to have been followed

while dealing with prerogative writs, whether under Article 32 or

Article 226 of the Constitution of India, and a litigant cannot be

permitted to play “hide and seek” or to “pick and choose” the facts

he likes to disclose, and to suppress or not to disclose other facts.

Thus, a party with “soiled hands” is not liable to be entertained.

b. A.  Shanmugam  v.  Ariya  Kshatriya  Rajakula  Vamsathu

Madalaya Nandhavana Paripalanai Sangam represented by

its President & Ors.13

c. Hari Narain v. Badri Das14 - the leave granted was revoked on

the  basis  that  where  such  leave  has  been  obtained  by

suppression  of  facts,  the  mere  fact  that  leave  was  granted,

would  not  come  in  the  way  of  the  Court  disentitling  the

appellant to relief.

13 (2012) 6 SCC 430 14 (1964) 2 SCR 203

26

24. We  have  examined  the  aforesaid  elaborate  contentions

advanced by both the learned senior counsel for the parties.  In our

view, the matter is in a very narrow compass.

25. Turning to the last aspect first, i.e., suppression of material fact,

we must observe that the manner of dealing with facts by the appellant

does  leave  much  to  be  desired.   There  ought  to  have  been  full

disclosure of documents.  However, we cannot be oblivious of the fact

that all the orders below are predicated on a reasoning that while the

appellant 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 and fabricated.  The criminal proceedings, however, are still

pending qua that aspect, and we would not like to delve in the matter

any  further,  on  this  aspect,  which  is  really  in  the  nature  of  a

preliminary objection by the respondent-State.  It is not necessary to

non-suit the appellant on this ground itself, as we feel that the merits

of the matter itself ought to be dealt with.

27

26. There is substance in the contention of the respondent-State that

the appellant had throughout sought to make out a case based on prior

permission  by the  competent  authority.   It  was  nobody’s  case  that

permission was not required to be obtained.  At this stage of the civil

appeal, without any pleadings being there, it is not even really open to

the  appellant  to  have  pleaded  the  interpretation  they  so  sought  to

plead.  This really cannot be categorized as a legal plea alone, and that

too raised at the fifth level of scrutiny in the hierarchy of proceedings.

The  appellant,  really  faced  with  a  factual  situation  where  the

permissions  do  not  exist,  now  sought  to  build  another  bridge  to

contend that be that as it may, no permission is required.  Such a plea

cannot be countenanced.

27. If we analyze the aforesaid plea also, we find no merit in the

same.  We cannot lose sight of the objective with which the said Act

was enacted.  The non-alienation clause existing in the said Rules, and

incorporated in the grants, was found to be inadequate to protect the

interests of Scheduled Castes and Scheduled Tribes, who were given

land owing to their ignorance and poverty.  Influential and powerful

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sections of society were stated to be obtaining sales and mortgages for

consideration,  and Scheduled  Castes  and Scheduled  Tribes  became

victims of circumstances.  The objective of the State Government in

enacting the said Act was to prevent such misuse and, therefore, in

categorical  terms,  transfer  with  permission  was  prescribed.   This

would be  de hors  the terms of  the grant  or  the said Rules.   Thus,

whether it was a case where it was within the window of five (5) to

fifteen  (15)  years,  or  the  period  beyond  fifteen  (15)  years,  such

permission would be required.

28. No doubt Rule 9 of the said Rules, enacted under a different

enactment, prior to the enactment of the said Act (and thereafter even

amended), does contemplate transfer between the window of five (5)

to  fifteen  (15)  years  on  certain  terms  and  conditions,  which  are

required to be satisfied by the Deputy Commissioner.  There is,  in

fact, a prohibition in grant of such permission until and unless there is

satisfaction of the Deputy Commissioner that the alienation is for the

purpose of acquiring other land, or for improving the remaining land

and that the grantee credits to Government an amount equal to fifty

29

percent of the market value of such land as on the date of sanction of

such alienation.  Thus, more rigorous terms have been put for transfer

within the window of five (5) to fifteen (15) years.

29. The reason for the competent authority to arrive at a decision

whether  to  grant  permission or  not  after  the period of  fifteen (15)

years  may  or  may  not  be  coloured  by  such  considerations.   But

certainly, he may satisfy himself that the members of the Scheduled

Castes and Scheduled Tribes only, who have been allotted the land,

are not taken for a ride, and it is possibly in their best interest for

recorded  reasons  that  such  permission  should  be  granted.  The

wordings of Section 4(2) of the said Act are quite clear in its terms.

30. Section 4 of the said Act, dealing with prohibition of transfer of

granted land, in sub-section (1), begins with a non obstante clause.  It

is notwithstanding anything in any agreement, contract or instrument,

or  for  that  matter  in  any law.   Section  11  of  the  said  Act  further

enforces this by giving the said Act an overriding effect over any other

law.  The said Section 11 reads as under:

30

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

31. The  aforesaid  Section  is  applicable  for  grants  made  either

before or after the commencement of the Act.  The terms of the grant

cannot be contravened, but the last part of sub-section (1) of Section 4

of the said Act makes any transfer in violation of sub-section (2) also

null and void.  Sub-section (2) of Section 4 of the said Act is crisp and

clear  in  its  terms,  putting  an  absolute  ban  on  transfer  after  the

commencement  of  the  Act,  without  previous  permission  of  the

Government.   Thus,  a  bare  reading  of  the  provision  makes  it

abundantly 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

pronouncements is also very clear in this behalf.  The observations in

Manchegowda & Ors. v.  State of Karnataka & Ors.,15 in para 24,

cannot be taken out of context, as what would have to be scrutinized is

15 (supra)

31

the proposition sought to be determined in that case.  The validity of

the Act had been challenged mainly because the provisions contained

in Sections 4 and 5 of the Act purported to declare transfer of “granted

land”  made  before  or  after  the  commencement  of  the  Act,  in

contravention of the terms of the grant of such land or law, null and

void.  In para 14, what was urged before the Court has been set out,

i.e., the challenge being to Section 4 insofar as it seeks to nullify the

transfer effected before the Act came into force.  In the conspectus of

the aforesaid observations, para 24 has to be read.

33. The  aforesaid  aspect  is  really  not  in  doubt,  in  view  of  the

subsequent  judicial  pronouncements,  more  specifically  in  Dharma

Naika v. Rama Naika & Anr.16  The context of the observations made

in Manchegowda v. State of Karnataka17 has been clearly enunciated.

It  is  noted  that  the  agreements  for  sale  were  executed  before  the

commencement of the Act.  The sale deed was executed afterwards.

In that context it was observed that it could be safely concluded that

provisions of Section 4(1) declared any transfer of land made either

16 (supra) 17 (supra)

32

before or after the commencement of the said Act to be null and void

if it contravened the conditions specified therein.  Section 4(2) was

held to make it abundantly clear that if the sale deed was executed and

registered after the commencement of the said Act, and was without

prior  permission  of  the  State  Government,  such  transfer  would  be

invalid  and  null  and  void.   The  scheme  of  the  said  Act  was  also

discussed  in  detail  with  the  objective  with  which  it  was  enacted.

Before parting with the judgment, this Court observed in para 27 that

Manchegowda & Ors. v. State of Karnataka & Ors.18 has to be read

in the context of the limited scope, as enunciated in para 7 of that

judgment.  Nothing more is really left to be said after this judgment,

though  there  are  certain  other  judicial  pronouncements  referred  to

aforesaid, cited by learned counsel for the State.  Suffice to say that a

delay  of  eight  (8)  years  by  itself  cannot  come  in  the  way  of  the

competent authority taking the action, as limitation principles would

not apply,  as observed in  Amrendra Pratap Singh v. Tej Bahadur

Prajapati & Ors.19  The cases referred to by learned senior counsel for

18 (supra) 19 (supra)

33

the appellant involved huge gaps of around twenty (20) to thirty (30)

years, which is not so in the present case.

34. The period of eight (8) years cannot be said to be such, as to

amount  to  such  delay  and  laches  as  would  make  the  action  void,

considering  that  it  is  in  respect  of  a  beneficial  legislation  for  the

Scheduled Castes and Scheduled Tribes community.

35. We  may  also  add  that  the  documents  of  transfer  executed

themselves,  also  do  not  evoke  much  confidence.  As  observed

aforesaid,  complete  consideration  is  paid  in  cash.   Further,  the

documents of transfer were executed by the allottee, but through the

attorney, who is none other than the wife of the appellant.  The GPA

was  executed  prior  to  the  period  of  fifteen  (15)  years,  and  it  is

inconceivable  that  the  same  would  have  been  executed  without

consideration.  It does seem to suggest that for all practical terms, the

alleged transfer took place prior to the lapse of the fifteen (15) year

period, but  the sale deed was executed after  such fifteen (15) year

period.   Be  that  as  it  may,  in  any  case,  it  would  not  make  any

difference to the result of the case.

34

36. We are of the view that the courts below committed no error,

and the competent authority has acted within its jurisdiction to nullify

the  transactions  which  are  contrary  to  the  statutory  provisions  of

Section 4(2) of the said Act, and the manner of execution itself raises

many doubts.

37. The appeals are accordingly dismissed, leaving the parties to

bear their own costs.

..….….…………………….J. [Sanjay Kishan Kaul]

...……………………………J. [Indira Banerjee]

New Delhi. April 30, 2019.

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