LEGAL ANALYSIS OF PROPERTY CASE LAW
Harish Chandra Hegde v. State of Karnataka (2004) 9 SCC 780
The below- mentioned case law is one of the significant cases in this field where section 51 of the Transfer of Property Act was set up to discord with certain vittles of the Karnataka slated lines and slated gentries (Prohibition of Transfer of Certain Lands) Act., the According to the Court, the Karnataka Scheduled gentries and slated lines (Prohibition of Transfer of Certain Lands) Act was legislated to defend the interests of a specific group within society. The slated gentries and slated lines needed support and protection. As a result, the Act mentioned over was passed by the Directive Principles of State Policy. As an outgrowth, it held the emblems of a one- of-a-kind act. In this case, there was a dichotomy between Sections 4 and 5 of Transfer of property Act 1882. Those who were related to similar groups are historically the weakest individualities in society. They demanded protection from the law because their innocence, poor background, and times of inferiority made them vulnerable to abuse. Indian Constitution and 1956 Regulations aimed to cover the interests of ethnical people by icing indefinite land possession for individualities from endemic lines. still, the court ruled that property transfers by law don’t fall under Section 51 of the Transfer of Property Act, as the subject was covered by a different enactment
FACTS
On September 11, 1986 the original heir Smt. Gangamma filed operation before the Assistant Commissioner under Section 5 of the Act. The Assistant Commissioner after service of notice and giving occasion to the transferee, by order dated May 29, 1987 held that the transfer made by the heir in favour of Haris Chandra was in breach of the terms of the entitlement and accordingly null and void. The decision of the Assistant Commissioner was verified in appeal by Deputy Commissioner on May 25, 1989. The transferee also filed Writ Petition under papers 226 and 227 of the Constitution, being Writ solicitation No. 7811 of 1990 before the Single bench Judge of this Court. The said Petition is pending disposal.
ISSUES
In this batch of Writ desires and Writ prayers the question which falls for determination is, whether the vittles of Section 51 of Transfer of Property Act are attracted when the sale of disaffection is set up to be void in agreement with the vittles of Section 4 of the Karnataka Scheduled gentries and slated lines (Prohibition of Transfer of Certain Lands) Act, 1978. The data leading to form of Appea lNo. 1045 of 1992 are set- out hereinafter to appreciate the contentions prompted at the Bar, On May 1, 1961 an area of two acres of land out of Survey Number134/110 positioned at Hosudi vill in Taluk and District Shimoga was granted in favour of Smt. Gangamma under Mysore Land Revenue Rules. The entitlement was on condition that the heir shall not alienate the land for a duration of fifteen times from the date of entitlement. The entitlement specified that in case the heir commits breach of the condition, the Government will be entitled to renew the land. Inspite of the prohibition the heir vended the land to Haris Chandra on February 15, 1965 and Haris Chandra in turn effected estrangements on posterior date.
The other- prayers in this batch also involves the identical issue. Writ solicitation No. 2259 of 1992 was filed by one T.S. Allappa before the learned Single Judge seeking the identical reliefs and the learned Single Judge by order dated July 8, 1994 directed that the Petition should be placed before the learned Chief Justice for constituting the Bench to determine the following two issues- “
(a) Whether the vittles of Section 51 of the Transfer of Property Act is applicable in the matters of cases covered by Sections 4 and 5 of the Karnataka Scheduled gentries and slated lines (Prohibition of Transfer of Certain Lands) Act, 1978?
(b) Whether the alienee or transferee in similar cases as are covered by Sections 4 and 5 of Act No. 2 of 1979 is entitled to get advancements made by him in the land removed and take out the material used by him in making advancements or is he entitled to claim compensation for those constructions and advancements?”
ANALYSIS OF THE LAW
The Karnataka Government legislated the Karnataka Scheduled gentries and slated lines (Prohibition of Transfer of Certain Lands) Act, 1978 (hereinafter appertained to as’ the Act’) to give for the prohibition of transfer of certain lands granted by Government to persons belonging to slated gentries and slated lines in the State. The Act became effective from January 1, 1979. Section 4(1) of the Act prescribes that notwithstanding anything in law, agreement, contract or instrument, any transfer of granted land made either before or after the inception of the Act shall be null and void, if similar transfer is in violation of the terms of the entitlement. The sub-section further provides that it’ll be supposed that the transfer hadn’t created any right, title or interest in similar land. The expression” granted land” is defined under Section 3(b) and means any land granted by the Government to a person belonging to Scheduled Caste or Scheduled Tribe under the applicable law for the time being in force. The expression” transfer” has been defined under Section 3 (d) of the Act and means gift, exchange’, mortgage, parcel or any other sale not being a partition among members of the family or testamentary disposition and includes the creation of a charge or agreement to vend, exchange,’ mortgage or parcel. Section 5 of the Act provides that the Assistant Commissioner, if satisfied, that transfer of any granted land is null and void either on the operation of any interested person or on an information given in jotting by any person or suo moto, also the Assistant Commissioner may, by order, take possession of similar land after evicting all persons in possession thereof. Section 5(1) (b) of the Act provides that the Assistant Commissioner on resumption shall restore land to the original heir or his legal heirs at law and where it isn’t nicely practicable to do so, also similar land shall be supposed to have been vested in the Government free from all encumbrances.
The vittles of Section 4 of the Act are attracted where the transfer is realized of granted land. The expression” granted land” as defined under Section 3(b) of the Act means any land granted by the Government to a person belonging to Scheduled Caste or Scheduled Tribe and includes land granted under the applicable taw for the time being in force. The subventions are issued under the Rules known as Mysore Land profit Rules framed under Section 233 of Mysore Land Revenue Code. It isn’t in disagreement that the lands are granted by the Government and the subventions are made on terms and conditions set- out in the entitlement. The transfers which can be declared as null and void by the Assistant Commissioner are those which are made in violation of the terms of the entitlement. The transferee whose transfers are announced null and void by the Assistant Commissioner and where the order is passed for reinstitution of the land and restoration to the original heir or his legal heir at law, has raised the contention that the transferee made advancements after purchase of the property and is entitled to the value of the advancements and the same must be paid or secured to the transferee. The claim is made with reference to vittles of Section 51 of the Transfer of Property Act. The question which requires determination is, whether the transferee can claim benefit of vittles of Section 51 of the Transfer of Property Act. Section 51 of Transfer of Property Act reads as follows-
” When the transferee of irremovable property makes any enhancement on the property, believing in good faith that he’s absolutely entitled thereto, and he’s latterly evicted therefrom by any person having a better title, the transferee has a right to bear the person causing the eviction either to have the value of the enhancement estimated and paid or secured to the transferee, or to vend his interest in the property to the transferee at the also request- value thereof, irrespective of the value of similar enhancement.
The quantum to be paid or secured in respect of similar enhancement shall be the estimated value thereof at the time of the eviction. When, under the circumstances forenamed, the transferee has planted or sown on the property crops which are growing when he’s evicted therefrom, he’s entitled to similar crops and to free doorway and exit to gather and carry them.”
The Transfer of Property Act, 1982 was legislated by the Parliament to define and meet certain corridor of the law relating to the transfer of property by act of parties. Section 5 of Transfer of Property Act provides that the expression” transfer of property” means an act by which the living person conveys property, in present or unborn, to one or further others living person. The transfers covered by Transfer of Property Act are transfers inter-vivos, between the living persons and transfers by operation of law aren’t covered. The transfer which attracts vittles of Section 4 of the Act are made by the heir in goodwill of the transferee and in violation of the terms of entitlement. The land is granted by the Government and the conditions of entitlement confers right on the Government to renew the land in case any of the terms of the entitlement is fractured. The Government subventions Act, 1895 was legislated to explain the Transfer of Property Act, 1882, so far as it relates to subventions from the Government and to remove certain dubieties as to the powers of the Government in relation to similar subventions. Section 2 of this Act inter-alia provides that nothing in the Transfer of Property Act, 1882 shall apply or shall be supposed ever to have applied to any entitlement made by or on behalf of Government and every similar entitlement shall be demonstrated and take effect as if the Transfer of Property Act hadn’t been passed. Section 3 of this Act also specified that all proscriptions, restrictions, conditions and limitations contained in any entitlement shall be valid and shall take effect according to tenor, and not Rule of Law, statutory enactment of Legislature to the negative notwithstanding. The plain reading of Sections 2 and 3 of this Act makes it clear that the vittles of Transfer of Property Act have no operation in respect of transfers effected by the Government by nature of entitlement. The Supreme Court in the Decision, State of UP. of Zahoor Ahmad & Anr. observed that the effect of Section 2 of Government subventions Act is that in the construction of an instrument governed by the Government subventions Act the Court shall interpret similar entitlement irrespective of the vittles of the Transfer of Property Act. The entitlement shall be demonstrated to take effect as if the Transfer of Property Act doesn’t apply. The lands in respect of which the Assistant Commissioner holds that the transfer is null and void under Section 4 of the Act are the lands granted by the Government and accordingly the vittles of the Transfer of Property Act will have no operation while continuing the lands under Section 5 of the Act.
CONCLUSION
The Harish Chandra Hegde v. State of Karnataka case is one of the crucial rulings in this area. In this case, Section 51 of the Transfer of Property Act contradicted certain portions of the Karnataka Scheduled gentries and slated lines (Prohibition of Transfer of Certain Lands) Act. The Karnataka Scheduled gentries and slated lines (Prohibition of Transfer of Certain Lands) Act, according to the Court, was passed to cover the interests of a specific group within society. The Scheduled Caste and Scheduled Tribe demanded to be supported and defended. therefore, the Act over was approved per the Directive Principles of State Policy. As a result, it had the characteristics of a unique act. The rules of a general act would therefore not apply to such an act. As a result, the circumstances in this case weren’t covered by Section 51 of the Transfer of Property Act.
The Petition, along with other Petitions where similar relief is claimed, were placed before the Bench for disposal.
The Answer to the two Questions referred by the Learned Single Judge are therefore in the negative.
Author: Arjit Srivastav
School Of Law, GD Goenka University
