SUB-LETTING OF TENANCY
In the case of Associated Hotels of India Ltd., Delhi v. S.B. Sardar Ranjit Singh AIR 1968 SC 933, this Court held that when eviction is sought on the ground of subletting, the onus to prove subletting is on the landlord. It was further held that if the landlord prima facie shows that the third party is in exclusive possession of the premises let out for valuable consideration, it would then be for the tenant to rebut the evidence.
In Helper Girdharbhai v. Saiyed Mohmad Mirasaheb Kadri & Others (1987) 3 SCC 538, this Court held that in a case where a tenant becomes a partner of a partnership firm and allows the firm to carry on business in the demised premises while he himself retains legal possession thereof, the act of the landlord does not amount to subletting. It was held that whether there is genuine partnership or not must be judged in the facts of each case in the light of the principles applicable to partnership.
Shalimar Tar Products Ltd. v. H.C. Sharma[(1988) 1 SCC 70] where it was held that to constitute a sub-letting, there must be a parting of legal possession, i.e., possession with the right to include and also right to exclude others and whether in a particular case there was sub-letting was substantially a question of fact.
A three-Judge Bench of this Court in Parvinder Singh v. Renu Gautam and Others (2004) 4 SCC 794 "The rent control legislations which extend many a protection to the tenant, also provide for grounds of eviction. One such ground, most common in all the legislations, is sub-letting or parting with possession of the tenancy premises by the tenant. Rent control laws usually protect the tenant so long as he may himself use the premises but not his transferee inducted into possession of the premises, in breach of the contract or the law, which act is often done with the object of illegitimate profiteering or rack-renting. To defeat the provisions of law, a device is at times adopted by unscrupulous tenants and sub-tenants of bringing into existence a deed of partnership which gives the relationship of tenant and sub-tenant an outward appearance of partnership while in effect what has come into existence is a sub-tenancy or parting with possession camouflaged under the cloak of partnership. Merely because a tenant has entered into a partnership he cannot necessarily be held to have sub-let the premises or parted with possession thereof in favour of his partners. If the tenant is actively associated with the partnership business and retains the use and control over the tenancy premises with him, maybe along with the partners, the tenant may not be said to have parted with possession. However, if the user and control of the tenancy premises has been parted with and deed of partnership has been drawn up as an indirect method of collecting the consideration for creation of sub-tenancy or for providing a cloak or cover to conceal a transaction not permitted by law, the court is not estopped from tearing the veil of partnership and finding out the real nature of transaction entered into between the tenant and the alleged sub-tenant. A person having secured a lease of premises for the purpose of his business may be in need of capital or finance or someone to assist him in his business and to achieve such like purpose he may enter into partnership with strangers. Quite often partnership is entered into between the members of any family as a part of tax planning. There is no stranger brought on the premises. So long as the premises remain in occupation of the tenant or in his control, a mere entering into partnership may not provide a ground for eviction by running into conflict with prohibition against 1 sub-letting or parting with possession. This is a general statement of law which ought to be read in the light of the lease agreement and the law governing the tenancy. There are cases wherein the tenant sub-lets the premises or parts with possession in defiance of the terms of lease or the rent control legislation and in order to save himself from the peril of eviction brings into existence, a deed of partnership between him and his sub-lessee to act as a cloak on the reality of the transaction. The existence of deed of partnership between the tenant and the alleged sub-tenant would not preclude the landlord from bringing on record material and circumstances, by adducing evidence or by means of cross-examination, making out a case of sub- letting or parting with possession or interest in tenancy premises by the tenant in favour of a third person. The rule as to exclusion of oral by documentary evidence governs the parties to the deed in writing. A stranger to the document is not bound by the terms of the document and is, therefore, not excluded from demonstrating the untrue or collusive nature of the document or the fraudulent or illegal purpose for which it was brought into being. An enquiry into reality of transaction is not excluded merely by availability of writing reciting the transaction........."
In Parvinder Singh v. Renu Gautam 1 [(2004) 4 SCC 794] a three-Judge Bench of this Court devised the test in these terms: (SCC p. 799, para 8) "If the tenant is actively associated with the partnership business and retains the use and control over the tenancy premises with him, maybe along with the partners, the tenant may not be said to have parted with possession. However, if the user and control of the tenancy premises has been parted with and deed of partnership has been drawn up as an indirect method of collecting the consideration for creation of sub-tenancy or for providing a cloak or cover to conceal a transaction not permitted by law, the court is not estopped from tearing the veil of partnership and finding out the real nature of transaction entered into between the tenant and the alleged sub- tenant"."
Ms. Celina Coelho Pereira & Ors. Vs Ulhas Mahabaleshwar Kholkar & Ors. JUSTICE Tarun Chatterjee & JUSTICE R. M. Lodha DD 30-10-2009, The legal position was quoted by the court after discussing several decisions and summarised as follows:
(i) In order to prove mischief of subletting as a ground for eviction under rent control laws, two ingredients have to be established, (one) parting with possession of tenancy or part of it by tenant in favour of a third party with exclusive right of possession and (two) that such parting with possession has been done without the consent of the landlord and in lieu of compensation or rent.
(ii) Inducting a partner or partners in the business or profession by a tenant by itself does not amount to subletting. However, if the purpose of such partnership is ostensible and a deed of partnership is drawn to conceal the real transaction of sub-letting, the court may tear the veil of partnership to find out the real nature of transaction entered into by the tenant.
(iii) The existence of deed of partnership between tenant and alleged sub-tenant or ostensible transaction in any other form would not preclude the landlord from bringing on record material and circumstances, by adducing evidence or by means of cross-examination, making out a case of sub-letting or parting with possession in tenancy premises by the tenant in favour of a third person.
(iv) If tenant is actively associated with the partnership business and retains the control over the tenancy premises with him, may be along with partners, the tenant may not be said to have parted with possession.
(v) Initial burden of proving subletting is on landlord but once he is able to establish that a third party is in exclusive possession of the premises and that tenant has no legal possession of the tenanted premises, the onus shifts to tenant to prove the nature of occupation of such third party and that he (tenant) continues to hold legal possession in tenancy premises.
(vi) In other words, initial burden lying on landlord would stand discharged by adducing prima facie proof of the fact that a party other than tenant was in exclusive possession of the premises. A presumption of sub-letting may then be raised and would amount to proof unless rebutted.
CONTENTS OF THIS BLOG
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SUB-LETTING OF TENANCY
GIFT OF UNDIVIDED CO-PARCENARY PROPERTY VOID
In Thamma Venkata Subbamma (dead) by Lrs. V. Thamma Rattamma and Others (1987 (3) SCC 294) it was observed as follows: "There is a long catena of decisions holding that a gift by a coparcener of his undivided interest in the coparcenary property is void. It is not necessary to refer to all these decisions Instead, we may refer to the following statement of law in Mayne's Hindu Law, eleventh Edn., Article 382: "It is now equally well settled in all the Provinces that a gift or devise by a coparcener in a Mitakshara family of his undivided interest is wholly invalid....A coparcener cannot make a gift of his undivided interest in the family property, movable or immovable, either to a stranger or to a relative except for purposes warranted by special texts. …………We may also refer to a passage from Mulla's Hindu Law, fifteenth edn., Article 258, which is as follows: Gift of undivided interest. - (1) According to the Mitakshara law as applied in all the States, no coparcener can dispose of his undivided interest in coparcenary property by gift. Such transaction being void altogether there is no estoppel or other kind of personal bar which precludes the donor from asserting his right to recover the transferred property. He may, however, make a gift of his interest with the consent of the other coparceners.
2008(11 )SCR904 Baljinder Singh . Vs Rattan Singh It is, however, a settled law that a coparcenary can make a gift of his undivided interest in the coparcenary property to another coparcener or to a stranger with the prior consent of all other coparceners. Such a gift would be quite legal and valid
In Sunil Kumar and Anr. v. Ram Parkash and Ors. (AIR 1988 SC 576) it was noted in paras 23 and 24 as follows: The managing member or karta has not only the power to manage but also power to alienate joint family property. The alienation may be either for family necessity or for the benefit of the estate. Such alienation would bind the interests of all the undivided members of the family whether they are adults or minors. The oft quoted decision in this aspect, is that of the Privy Council in Hanuman Parshad v. Mt. Babooee,  6 M.I.A. 393. There it was observed at p. 423: (1) "The power of the manager for an infant heir to charge an estate not his own is, under the Hindu law, a limited and qualified power. It can only be exercised rightly in case of need, or for the benefit of the estate." This case was that of a mother, managing as guardian for an infant heir. A father who happens to be the manager of an undivided Hindu family certainly has greater powers to which I will refer a little later. Any other manager however, is not having anything less than those stated in the said case. Therefore, it has been repeatedly held that the principles laid down in that case apply equally to a father or. other coparcener who manages the joint family estate.. Although the power of disposition of joint family property has been conceded to the manager of joint Hindu family for the reasons aforesaid, the law raises no presumption as to the validity of his transactions. His acts could be questioned in the Court of law. The other members of the family have a right to have the transaction declared void, if not justified. When an alienation is challenged as being unjustified or illegal it would be for the alienee to prove that there was legal necessity in fact or that he made proper and bona fide enquiry as to the existence of such necessity. It would be for the alienee to prove that he did all that was reasonable to satisfy himself as to the existence of such necessity. If the alienation is found to be unjustified, then it would be declared void. Such alienations would be void except to the extent of manager's share in Madras, Bombay and Central Provinces. The purchaser could get only the manager's share. But in other provinces, the purchaser would not get even that much. The entire alienation would be void. [Mayne's Hindu Law 11th ed. para 396].
In Sadasivam v. K. Doraisamy (AIR 1996 SC 1724) it was found that when the father has executed sale deed in favour of a near relative and the intention to repay debt or legal necessity has not been proved as a sham transaction.
In Words and Phrases by Justice R.P. Sethi the expression `void' and `'voidable' read as under: "Void- Black's Law Dictionary gives the meaning of the word "void" as having different nuances in different connotations. One of them is of course "null or having no legal force or binding effect". And the other is "unable in law, to support the purpose for which it was intended". After referring to the nuances between void and voidable the lexicographer 26 pointed out the following: "The word `void' in its strictest sense, means that which has no force and effect, is without legal efficacy, is incapable of being enforced by law, or has no legal or binding force, but frequently the word is used and construed as having the more liberal meaning of `voidable'. The word `void' is used in statute in the sense of utterly void so as to be incapable of ratification, and also in the sense of voidable and resort must be had to the rules of construction in many cases to determine in which sense the legislature intended to use it. An act or contract neither wrong in itself nor against public policy, which has been declared void by statute for the protection or benefit of a certain party, or class of parties, is voidable only". (Pankan Mehra and Anr. v. State of Maharashtra and Ors. (2000 (2) SCC 756).
Per Fazal Ali, J- The meaning of the word "void" is stated in Black's Law Dictionary (3rd Edn.) to be as follows: "Null and void; ineffectual; nugatory; having no legal force or binding effect; unable in law to support the purpose for which it was intended; nugatory and ineffectual so that nothing can cure it; not valid". Keshavan Madhava Menon v. State of Bombay (1951 SCR 228).
The expression "void" has several facets. One type of void acts, transactions, decrees are those which are wholly without jurisdiction, ab initio void and for avoiding the same no declaration is necessary, law does not take any notice of the same and it can be disregarded in collateral proceeding or otherwise. Judicial Review of Administration Action, 5th Edn., para 5-044 (See also Judicial Remedies in Public Law at page 131; Dhurandhar Prasad Singh v. Jai Prakash University and Ors. (2001 (6) SCC 534)
The other type of void act, e.g. may be transaction against a minor without being represented by a next friend. Such a transaction is a good transaction against the whole world. So far as the minor is concerned, if he decides to avoid the same and succeeds in avoiding it by taking recourse to appropriate preceding the transaction becomes void from the very beginning. Another type of void act may be one, which is not a nullity, but for avoiding the same, a declaration has to be made. (Government of Orissa v Ashok Transport Agency and Ors (2002 (9) SCC 28)
The meaning to be given to the word "void" in Article 13 of the Constitution is no longer res integra, for the matter stands concluded by the majority decision of the Court in Keshavan Madhava Menon v. The State of Bombay (1951) SCR 228. We have to apply the ratio decidendi in that case to the facts of the present case. The impugned Act was a existing law at the time when the Constitution came into force. That existing law imposed on the exercise of the right guaranteed in the citizens of the India by Article 19(1)(g) restrictions which could not be justified as reasonable under clause (6) as it then stood and consequently under Article 13, that existing Law became void "to the extent of such inconsistency". As explained in Keshavan Madhava Menon's case (supra) the Law became void in toto or for all purposes or for all times or for all persons but only "to the extent of such inconsistency", that is to say, to the extent it became inconsistent with the provisions of Part III which conferred the fundamental rights on the citizens.
It did not become void independently of the existence of the rights guaranteed by Part III. (Bhikaji Narain Dhakras and Ors. v. The State of Madhya Pradesh and Anr. (1955 (2) SCR 589).
The word "void" has a relative rather than an absolute meaning. It only conveys the idea that the order is invalid or illegal. In Halsbury's Laws of England, 4th Edn. (Re- issue) Vol. 1(1) in para 26, p.31 it is stated thus: "If an act of decision, or an order or other instrument is invalid, it should, in principle, be null and void for all purposes; and it has been said that there are no degrees of nullity. Even though such an act is wrong and lacking in jurisdiction, however, it subsists and remains fully effective unless and until it is set aside by a court of competent jurisdiction. Until its validity is challenged, its legality is preserved". (State of Kerala v. M.K. Kunhikannan Nambiar Manjeri Manikoth, Naduvil (dead) and ors. (1996 (1) SCC 435).
"Voidable act" is that which is a good act unless avoided, e.g. if a suit is filed for a declaration that a document is fraudulent, it is voidable as the apparent state of affairs is the real state of affairs and a party who alleges otherwise is oblige to prove it. If it is proved that the document is forged and fabricated and a declaration to that effect is given, a transaction becomes void from the very beginning. There may be voidable transaction which is required to be set aside and the same is avoided from the day it is so set aside and not any day prior to it. In cases, where legal effect of a document cannot be taken away without setting aside the same, it cannot be treated to be void but would be obviously voidable. Government of Orissa v. Ashok Transport Agency and Ors. (2002 (9) SCC 28)".
GUPTHA at paragraph 10 held thus
"an ordinary citizen or a common man is hardly equipped to match the might
of the State or its instrumentalities .... A public functionary if he acts
maliciously or oppressively and the exercise of power results in harassment and
agony then it is not an exercise of power but its abuse. No law provides
protection against it. He who is responsible for it must suffer it. Compensation
or damage as explained earlier may arise even when the officer discharges his
duty honestly and bona fide. But when it arises due to arbitrary or capricious
behaviour then it loses its individual character and assumes social
significance. Harassment of a common man by public authorities is socially
abhorring and legally impermissible..."
In Lourdu Mari David and Ors. vs. Louis Chinnaya Arogiaswamy and Ors. Reported in (1996) 5 SCC 589 the Supreme Court observed: "It is settled law that the party who seeks to avail of the equitable jurisdiction of a court and specific performance being equitable relief, must come to the court with clean hands. In other words the party who makes false allegations does not come with clean hands and is not entitled to the equitable relief."
THE STATE OF ANDHRA PRADESH & ANOTHER V. T.SURYACHANDRA RAO, (2006) 1 LW 547 at pg.551 wherein the Honourable Supreme Court has observed as follows: " "Fraud" as is well known vitiates every solemn act. Fraud and justice never dwell together. Fraud is a conduct either by letter or words, which includes the other person or authority to take a definite determinative stand as a response to the conduct of the former either by words or letter. It is also well settled that misrepresentation itself amounts to fraud. Indeed, innocent misrepresentation may also give reason to claim relief against fraud. A fraudulent misrepresentation is called deceit and consists in leading a man into damage by willfully or recklessly causing him to believe and act on falsehood. It is a fraud in law if a party makes representations, which he knows to be false, and injury enures therefrom although the motive from which the representations proceeded may not have been bad. An act of fraud on court is always viewed seriously. A collusion or conspiracy with a view to deprive the rights of the others in relation to a property would render the transaction void ab initio. Fraud and deception are synonymous. Although in a given case a deception may not amount to fraud, fraud is anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine including res judicata
A.V.PAPAYYA SASRTY AND OTHERS V. GOVT. OF A.P. AND OTHERS, (2007) 4 SUPREME COURT CASES 221, wherein it is observed that 'Fraud vitiates all judicial acts whether in rem or inpersonam and that the Judgment, decree or order obtained by fraud has to be treated as non est and nullity, whether by Court of first instance or by the final Court and that it can be challenged in any Court, at any time, in appeal, revision, writ or even in collateral proceedings.'
S.P.CHENGALVARAYA NAIDU V. JAGANNATH AND OTHERS, AIR (81) 1994 SUPREME COURT 853, wherein it is held as follows:- 'The courts of law are meant for imparting justice between the parties. One who comes to the Court, must come with clean hands. It can be said without hesitation that a person whose case is based on falsehood has no right to approach the Court. He can be summarily thrown out at any stage of the litigation. A litigant, who approaches the Court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the court as well as on the opposite party.'
RAM CHANDRA SINGH V. SAVITRI DEVI AND OTHERS, (2003) 8 SCC 319 at pg. 322 wherein it is inter alia held that 'An act of fraud on Court is always viewed seriously. A collusion or conspiracy with a view to deprive the rights of others in relation to a property would render the transaction void ab initio. Fraud and deception are synonymous. Although in a given case a deception may not amount to fraud, fraud is anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine including res judicata.'
A sale of immovable property is a contract, which gives an individual civil right to the buyer, if such sale is in accordance with entrenched common law principles. The Indian Contract Act, 1872, Specific Relief Act and Transfer of Property Act, essentially deal with, among others - the contract of sale. The Indian Evidence Act, the Registration Act and the Stamp Act form the trinity of procedural and adjutant law in respect of sale whereas the three Acts referred to before form the trinity of substantive law of contract of sale.
Chapter II of TP Act contains two parts. Part-A deals with ''Transfer of property whether movable or immovable' (Sections 5 to 34). Part-B deals with ''Transfer of immovable property' (Sections 38 to 53-A). A transfer as defined by Section 5 of TP Act is conveyance of property by one living person to one or more living persons or to him in present or in future. Section 6 of TP Act declares that property of any kind may be transferred except the transfer of property, which is prohibited by TP Act. Clauses (a) to (h) under Section 6 of TP Act, deal with some of prohibited transfers. Clause (h) lays down that "no transfer can be made (i) insofar as it is opposed to the nature of the interest affected thereby, or (ii) for an unlawful object, or consideration within the meaning of Section 23 of the Indian Contract Act, 1872, or (iii) to a person legally disqualified to be transferee." Section 7 of TP Act enumerates that every person entitled to transferable property or authorized to dispose of transferred property, not his own, can transfer the property provided he is competent to do so. Section 8 of TP Act deals with 'operation of transfer'. It is to the effect that a transfer of property passes forthwith to the transferee of the interest, which the transferor is then capable of passing in the property and legal incidents thereof. When such transfer is completed as per Sections 10 and 11 of TP Act, any restriction contained in the transfer deed disentitling the transferee from operating or disposing of his interest in the property would be void and when the interest is created absolutely in the transferee with a condition that such transferee can enjoy subject to conditions, the transferee can ignore such conditions. As per Section 4 of TP Act, all the provisions relating to contract in the TP Act shall be taken as part of the Indian Contract Act and Section 54 (Paragraphs 2 and 3), Sections 59, 107 and 123 of TP Act shall be read as supplemental to the Registration Act.
Unless and until, a person is competent to contract and entitled to transfer the property, a valid transfer of property cannot take place (Sections 5 and 7 of TP Act). As a necessary corollary, if the transfer of property is by a person without title or such transfer is opposed to nature of interest or for an unlawful object or consideration within the meaning of Section 23 of the Contract Act or transferee is legally disqualified to be transferee, title in the property does not pass to the transferee (Sections 6(h) and 8 of TP Act and Section 23 of the Contract Act).
Section 23 of the Indian Contract Act, 1872 (hereinafter referred to as 'the Contract Act') is applicable to the present controversy. It lays down that an agreement is void if it deviates the provisions of any law. It further lays down that consideration or object of an agreement is lawful unless it is forbidden by any law or is fraudulent or involves or implies injury to the person or property of another, or the Court regards it as immoral or opposed to public policy. Therefore, such a document, in every ones view, is a fraudulent document within the meaning of Section 23 of the Contract Act and as such, cannot be registered.
REGISTRATION ACT 1908 PROVISIONS:-
32. Persons to present documents for registration
Except in the cases mentioned in 24[sections 31, 88 and 89], every document to be registered under this Act, whether such registration be compulsory or optional, shall be presented at the proper registration office-
(a) by some person executing or claiming under the same, or, in the case of a copy of a decree or order, claiming under the decree or order, or
(b) by the representative or assignee of such a person, or
(c) by the agent of such a person, representative or assign, duly authorised by power-of-attorney executed and authenticated in manner hereinafter mentioned.
33. Power-of-attorney recognisable for purposes of section 32
(1) For the purposes of section 32, the following powers-of-attorney shall alone be recognised, namely:-
(a) if the principal at the time of executing the power-of-attorney resides in any part of 18[India] in which this Act is for the time being in force, a power-of-attorney executed before and authenticated by the Registrar or Sub-Registrar within whose district or sub-district the principal resides;
(b) if the principal at the time aforesaid 25[resides in any part of India in which this Act is not in force], a power-of-attorney executed before and authenticated by any Magistrate;
(c) if the principal at the time aforesaid does not reside in 18[India], a power-of-attorney executed before and authenticated by Notary Public, or any court, Judge, Magistrate, 26[Indian] Consul or vice-consul, or representative 27[***] of the Central Government:
PROVIDED that the following persons shall not be required to attend at any registration-office or court for the purpose of executing any such power-of-attorney as is mentioned in clauses (a) and (b) of this section, namely-
(i) persons who by reason of bodily infirmity are unable without risk or serious inconvenience so to attend;
(ii) persons who are in jail under civil or criminal process; and
(iii) persons exempt by law from personal appearance in court.
5[Explanation: In this sub-section "India" means India, as defined in clause (28) of section 3 of the General Clauses Act, 1897.]
(2) In the case of every such person the Registrar or Sub-Registrar or Magistrate, as the case may be, if satisfied that the power-of-attorney has been voluntarily executed by the person purporting to be the principal, may attest the same without requiring his personal attendance at the office or court aforesaid.
(3) To obtain evidence as to the voluntary nature of the execution, the Registrar or Sub-Registrar or Magistrate may either himself go to the house of the person purporting to be the principal, or to the jail in which he is confined, and examine him, or issue a commission for his examination.
(4) Any power-of-attorney mentioned in this section may be proved by the production of it without further proof when it purports on the face of it to have been executed before and authenticated by the person or court hereinbefore mentioned in that behalf.
81. Penalty for incorrectly endorsing, copying, translating or registering documents with intent to injure
Every registering officer appointed under this Act and every person employed in his office for the purposes of this Act, who, being charged with the endorsing, copying, translating or registering of any document presented or deposited under its provisions, endorses, copies, translates or registers such document in a manner which he knows or believes to be incorrect, intending thereby to cause or knowing it to be likely that he may thereby cause injury, as defined in the Indian Penal Code, to any person, shall be punishable with imprisonment for a term which may extend to seven years, or with fine, or with both.
83. Registering officer may commence prosecutions
(1) A prosecution for any offence under this Act coming to the knowledge of a registering officer in his official capacity may be commenced by or with the permissions of the Inspector-General, 31[***] the Registrar or the Sub-Registrar, in whose territories, district or sub-district, as the case may be, the offence has been committed. (2) Offences punishable under this Act shall be triable by any court or officer exercising powers not less than those of a Magistrate of the second class.
KARNATAKA STAMP ACT PROVISIONS
33. Examination and impounding of instruments.- (1) Every person having by law or consent of parties authority to receive evidence, and every person in charge of a public office, except an officer of police, before whom any instrument, chargeable in his opinion, with duty, is produced or comes in the performance of his functions, shall, if it appears to him that such instrument is not duly stamped, impound the same.
(2) For that purpose every such person shall examine every instrument so chargeable and so produced or coming before him, in order to ascertain whether it is stamped with a stamp of the value and description required by the law in force in the 1[State of Karnataka]1 when such instrument was executed or first executed:
34. Instruments not duly stamped inadmissible in evidence, etc.- No instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped:
(a) any such instrument not being an instrument chargeable 1[with a duty not exceeding fifteen naye paise]1 only, or a mortgage of crop [Article 11 (a) of the Schedule] chargeable under clauses (a) and (b) of section 3 with a duty of twenty-five naye paise shall, subject to all just exceptions, be admitted in evidence on payment of the duty with which the same is chargeable, or, in the case of an instrument insufficiently stamped, or the amount required to make up such duty, together with a penalty of five rupees, or, when ten times the amount of the proper duty or deficient portion thereof exceeds five rupees, of a sum equal to ten times such duty or portion;
1. Substituted by Act 29 of 1962 w.e.f. 1.10.1962.
(b) where a contract or agreement of any kind is effected by correspondence consisting of two or more letters and any one of the letters bears the proper stamp, the contract or agreement shall be deemed to be duly stamped;
(c) nothing herein contained shall prevent the admission of any instrument in evidence in any proceeding in a Criminal Court, other than a proceeding under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure, 1898;
(d) nothing herein contained shall prevent the admission of any instrument in any Court when such instrument has been executed by or on behalf of the Government, or where it bears the certificate of the 1[Deputy Commissioner]1 as provided by section 32 or any other provision of this Act 2[and such certificate has not been revised in exercise of the powers conferred by the provisions of Chapter VI]2.
KARNATAKA STAMP SCHEDULE ARTICLE PROVISIONS
Art. 41. Power of Attorney - (as defined by Section 2(1)(p) not being a proxy-
(a) when executed for the sole purpose of procuring the registration of one or more documents in relation to a single transaction or for admitting execution of one or more such documents; 1[One hundred rupees]
(b) when authorizing one person or more to act in a single transaction other than the case mentioned in clause (a); 1[One hundred rupees]
(c) when authorizing not more than five persons to act jointly and severally in more than one transaction or generally; 2[One hundred rupees]
1. Substituted for the words "ten rupees" and "twenty rupees" by Act No. 7 of 2000, w.e.f. 1.4.2000.
2. Substituted by Act No. 10 of 1990, w.e.f. 1.4.1990.
(d) when authorizing more than five but not more than ten persons to act jointly and severally in more than one transaction or generally; 1[Two hundred rupees]
2 (e) when given for consideration or when coupled with interest and authorizing the attorney to sell any immovable property; The same duty as a conveyance [under Art. No. 20(1)] on consideration or on market value of the property (which is the subject matter of such power of attorney) whichever is higher..
1(f) If relating to construction or development or sale of an immoveable property, including a multiunit house or building or unit of apartment or flat or portion of a multistoried building by a person having a stipulation that after construction or development, such property shall be held jointly or severally by that person and the owner or lessee, as the case may be, of such property, or that it shall be sold jointly or severally by them or that a part of it shall be held jointly or severally by them and the remaining part there of shall be sold jointly or severally by them.
1) The expression “Lease” shall mean a holder of a lease, for a period exceeding 30 years or more, or in perpetuity or does not purport to be for any definite term.
The expression “building” shall mean a building having more than one apartment or flat or office accommodation or portion of a multistoried building or both. One rupee for every one hundred rupees or part thereof on the market value of the property or the estimated cost of construction or proposed construction or development or proposed development of the property, as the case may be (which is the subject matter of such transfer under the agreement in accordance with the provision of section 28 of the K.S.Act, 1957) or on the consideration for such transfer whichever is higher.
Provided that, when proper stamp duty is paid under “clause (e), or clause (f) of the article 5, as the case may be, on such agreement or records thereof or memorandum of an agreement executed between the same parties and in respect of the same property, the stamp duty chargeable under these clauses shall be as per article 41(f)”.
1. Substituted by Act No. 10 of 1990, w.e.f. 1.4.1990.
2. Clause (e) substituted by Act No.9 of 2009 w.e.f. 1-4-2009
Description of Instrument Proper Stamp Duty
1 (eb) When given to person other than the father, mother, wife or husband, sons /daughters, brothers, sisters in relation to the executant authorizing such person to sell immovable property situated in Karnataka State. 2Seven rupees and fifty paise for every one hundred rupees or part thereof on the market value of the property which is the subject matter of power of attorney.
Provided that the duty paid on such instrument is adjustable towards the duty payable on the instrument of sale or transfer executed subsequently in favour of either the attorney holder or any other person.
(f) in any other case. 3 [Two hundred rupees.]
N.B. - The term "Registration" includes every operation incidental to registration under the Registration Act, 1908 (Central Act 16 of 1908).
Explanation - For the purposes of this Article more persons than one when belonging to the same firm, shall be deemed to be one person.
Act. 42. Protest of Bill or note, that is to say, any declaration in writing made by a Notary Public or other person lawfully acting as such, attesting the dishonor of a bill of exchange or promissory note. 4[Ten rupees.]
1. Substituted by Act No. 6 of 1999, w.e.f. 1.4.1999.
2.Substituted for the words” eight rupees” by Act No. 7 of 2006 w.e.f 1-4-2006
3. Substituted for the words "one hundred rupees" by Act No.9 of 2009 w.e.f. 1.4.2009.
4. Substituted for the words "five rupees" by Act No.10 of 1990 w.e.f. 1.4.1990.
If the title passed on is defective, the law gives the option to the purchaser to avoid such sale and sue for recovery of consideration and/or damages for breach and misrepresentation. In a situation there could also be a criminal charge against the spurious vendor for cheating under Indian Penal Code, 1860. Even in a case where the vendor has no title at all but the purchaser was made to believe that what is passed on is a valid title in the property demised under the instrument, the vendee has remedy in civil law as well as criminal law. This remedy, however, is not available to a purchaser who is negligent in not inspecting the title of the vendor and who does not insist upon such covenant or warranty. The principle of caveat emptor (let the purchaser beware), however, has no application if vendor has practised fraud to induce the purchaser to accept the offer of sale, ['A Selection of Legal Maxims': Herbert Broom; Tenth edn., (1939), Sweet and Maxwell, pp.528-529.]. In case of fraud, the vendor cannot maintain any action against the purchaser. The legal maxim 'ex dolo malo non oritur actio' applies and the vendor who knowingly committed an act declared by the law to be criminal cannot maintain action against the purchaser who refuses to take the title conveyed under the deed. The maxim 'dolus mains' vitiates all transactions effected by fraud, [Ibid pp. 497; 540.]. Insofar as the buyer is concerned, as observed by Herbert Broom in his compilation of Legal Maxims (p.540), he may abide by the contract induced by fraud and bring an action for deceit (i.e., cheating in Indian law), for the damages sustained by the fraud. The buyer may also rescind the contract returning the goods if already accepted and recover the price paid.
The legal maxims 'nemo dat quod non habet' and 'nemo plus juris ad alium transferre potest quam ipse habet' postulate that where property is sold by a person who is not the owner and who does not sell under the authority or consent of the real owner, the buyer acquires no title to the property than the seller had. The Indian law recognizes this principle in various provisions of various statutes which in pith and substance deal with Contracts, Transfer of property and Specific relief
The position of transferee under a fraudulent instrument of conveyance is different from the true owner of the title to the property in question. Section 31 of the Specific Relief Act provides one remedy, namely, cancellation of the instrument by showing to the Court that such instrument is void or voidable and that if such instrument is allowed to outstanding, it would cause serious injury. The injury referred to in Section 31 need not be with reference to the person i.e., the true owner of the title, but can as well encompass the property involved. Indeed, Sub-section (2) of Section 31 of the Specific Relief Act requires the Court trying a suit for cancellation of instrument to send a copy of the decree to the Registering Officer, who shall note on the copy of the instrument contained in the books of registration the fact of its cancellation. This would only show that the law is anxious to protect the title to the immovable property from all deceitful encumbrances. Should there be a fraudulent transfer or a transfer vitiated by misrepresentation and collusion between two unconcerned persons, does the law expects the true owner to file a suit only under Section 31 of the Specific Relief Act or to file a suit for declaration of his title again and again? That in all cases, the true owner of the. Immovable property cannot seek the remedy of cancellation under Section 31 is already discussed. If a person has enjoyed the property as a true owner for considerable length of time, merely because there is a fraudulent transfer of his property, by one incompetent person to another person, should any one compel the true owner to file a suit for declaration of title again and again? Does it not render the registration of the transfer of title, which he had obtained much earlier, useless, unfruitful and meaningless? Whether the present dispensation of law is in such ineffective state containing vacuum or is it the duty of every Court to interpret the existing statute law taking into consideration the phenomenal changes in the society and also fast changing values in the society to mould the existing policy in statute law so as to render fraudulent transfers ineffective without recourse to common law remedy?
As seen from the Statement of Objects and Reasons appended to the Registration Bill it was felt that registration of certain documents of transactions should be made compulsory so as to avoid conflicts in relation to various transactions. The purpose was to assure people that if a document evidencing transaction or conveyance is registered, no one can claim any interest by creating a forged or sham document. the object of registering a document is to give notice to the world that a document has been executed to prevent fraud and forgery and to secure a reliable and complete account of all transactions effecting the title to the property.
Rule 26 of Registration Rules
(i) Every document shall, before acceptance for registration, be examined by the Registering Officer to ensure that all the requirements prescribed in the Act and in these rules have been complied with, for instance,-
(a) that it has been presented in the proper office (Sections 28, 29 and 30);
(b) that the person is entitled to present it (Sections 32 and 40);
(c) that if it is a non-testamentary document and relates to immovable property, it contains a description of property sufficient to identify the same and fulfils the requirements of Rules 18 to 20.
(d) that if it is written in a language not commonly used in the district and not understood by the Registering Officer it is accompanied by a true translation into a language commonly used in the district and also by true copy (Section 19);
(e) that if it contains a map or plan, it is accompanied by true copies of such map or plan as required by Section 21(4);
(f) that if it contains no unattested interlineations, blanks, erasures or alterations, which in his opinion require to be attested as required by Section 20(1);
(g) that if the document is one other than a will it has been presented to within the time prescribed by Sections 23 to 26;
(h) that it bears the date of its execution and does not bear a date anterior to the date of purchase of stamp papers and the document is written on a date subsequent to the date of representation;
(i) that if the date is written in any document other than a will presented for registration after the death of the testator according to both the British and the Indian calendars, these dates tally; and
(j) that if the presentant is not personally known to the Registering Officer, he is accompanied by such identifying witnesses with whose testimony the Registering Officer may be satisfied.
(ii) If there are any informalities in presentation of a nature which can be remedied, for instance, non-compliance of the requirements mentioned in Clauses (a) to (f), (h), (i) and (j) of Sub-rule (i) or this rule, the Registering Officer shall give the party such information as may be necessary and return the fees and the document with a view to the document being presented again in due form. The action of the Registering Officer shall be confined to advice and he shall not himself alter the document in any way.
It forms no part of a Registering Officer's duty to enquire into the validity of a document brought to him for registration or to attend to any written or verbal protest against the registration of a document based on the ground that the executing party had no right to execute the document; but he is bound to consider objections raised on any of the grounds stated below:
(a) that the parties appearing or about to appear before him are not thepersons they profess to be;
(b) that the document is forged;
(c) that the person appearing as a representative, assign or agent, has no right to appear in that capacity;
(d) that the existing party is not really dead as alleged by the party applying for registration; or
Though Rule 58 prohibits the Registering Officers from enquiring into validity of the document, Rule 26 read-with Rule 58 reveals that it is always permissible for the Registering Officer to examine the document presented for registration as to whether the person who presented the document is entitled to present, whether such person is known to the officer or has been properly identified by the identifying witnesses, and also examine the document with reference to the various provisions referred to hereinabove. If any objection is raised, the Registering Officer has to consider whether the parties appearing before him are not the parties they profess to be, whether the document is forged and whether the document is presented without proper authority by representative, and whether the executing party is dead or not. In case, the Registering Officer is not satisfied, he can refuse registration.
The question may also have to be examined from the point of view of administrative law. Needless to point out that administrative law, which also governs the exercise of power of judicial review by this Court is intended to see that all the public authorities, who are vested with powers discharge their duties and functions in accordance with rule of law, in a manner which is not illegal, irrational or improper. In post constitutional era, all the power exercised in the democratic governance flows from super statute i.e., the Constitution of India. There is no gain saying that all power is a trust and the trust should be discharged legally, fairly, impartially and with accountability. There is always presumption - though rebuttable; in law that all public functions are discharged for public good in accordance with law. If a public authority is induced to discharge the trust (exercise power) in a manner which is fraudulent, whether such public authority can recall/ revoke earlier fraudulent order? Insofar as the judicial authorities and Courts are concerned, it is now settled law that every Court in judicial hierarchy has inherent power to revoke an earlier order obtained by fraud.
Fraud is a conduct which induces another person or authority to take a definite determinative stand in response to such person's conduct by words or letter. In his treatise on the 'Law of Fraud and Mistake', Kerr describes the elements of fraud as consisting in one man's endeavour by deception to alter another man's general rights; or in one man's endeavouring by circumvention to alter general rights of another or in one man's endeavouring by deception to alter another man's particular rights. Fraud and dispensation of justice by any authority - be it judicial or executive; do not go together. One species of fraud is misrepresentation. When the man misrepresents about some animate thing or inanimate thing which is quite opposite to the reality, he would be committing fraud by misrepresentation. The effect of fraud on the person or the benefit derived by such person is a cipher. "Fraud unravels everything and no Court can allow a person to keep an advantage obtained by fraud nor judgment of a Court or an order of a public authority can be allowed to stand if the same is obtained by fraud".
In Shrisht Dhawan v. Shaw Brothers , the Supreme Court held as under: Fraud and collusion vitiate even the most solemn proceedings in any civilized system of jurisprudence. It is a concept descriptive of human conduct. Michael Levi likens a fraudster to Milton's sorcerer, Comus, who exulted in his ability to, 'wing me into the easy-hearted man and trap him into shares'. It has been defined as an act of trickery or deceit. In Webster's Third New International Dictionary fraud in equity has been defined as an act or omission to act or concealment by which one person obtains an advantage against conscience over another or which equity or public policy forbids as being prejudicial to another. In Black's Legal Dictionary, fraud is defined as an intentional perversion of truth for the purpose of inducing another in reliance upon it to part with some valuable thing belonging to him or surrender a legal right; a false representation of a matter of fact whether by words or by conduct, by false or misleading allegations, or by concealment of that which should have been disclosed, which deceives and is intended to deceive another so that he shall act upon it to his legal injury. In Concise Oxford Dictionary, it has been defined as criminal deception, use of false representation to gain unjust advantage; dishonest artifice or trick... From dictionary meaning or even otherwise fraud arises out of deliberate active role of representator about a fact which he knows to be untrue yet he succeeds in misleading the representee by making him believe it to be true. The representation to become fraudulent must be of fact with knowledge that it as false.
In S.P. Chengalvaraya Naidu v. Jagannath , quoting Lord Edward Coke (that 'fraud avoids all judicial acts, ecclesiastical or temporal',) Supreme Court of India emphasised that the judgment or decree obtained by fraud on the Court is nullity and non est in the eye of law. It was also held that a decree/ judgment vitiated by fraud must be ignored treating it as nullity by every Court whether superior or inferior as "finality of litigation is not available when fraud is alleged". The following passage from the said judgment is relevant here. ....The principle of "finality of litigation" cannot be passed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants. The Courts of law are meant for imparting justice between the parties. One who comes to the Court, must come with clean hands. We are constrained to say that more often than not. Process of the Court is being abused. Property-grabbers, tax-evaders, bank-loan-dodgers and other unscrupulous persons from all walks of life find the Court-process a convenient lever to retain the illegal gains indefinitely. We have no hesitation to say that a person whose case is based on falsehood, has no right to approach the Court. He can be summarily thrown out at any stage of the litigation... A fraud is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another's loss. It is a cheating intended to get an advantage...
The principle is thus well settled that all the Courts and judicial forums in India have inherent power to recall or revoke the order passed earlier when it is shown that such order came to be passed by reason of fraud played on the Court. What is the effect of fraud in public administration when power is exercised by either administrative/executive authorities or statutory authorities? This was precisely the question considered by the Supreme Court in Indian Bank v. Satyam Fibres (India) Private Limited . While observing that the judiciary in India possesses inherent power under Section 151 of Code of Civil Procedure, 1908 (CPC), to recall its judgment or order obtained by fraud on the Court, the Apex Court ruled as under: This plea could not have been legally ignored by the Commission which needs to be reminded that the authorities, be they constitutional, statutory or administrative, (and particularly those who have to decide a lis) possess the power to recall their judgments or orders if they are obtained by fraud as fraud and justice never dwell together (Fraus et jus nunquam cohabitant). It has been repeatedly said that fraud and deceit defend or excuse no man (Fraus et dolus nemini patrocinari debent)...Since fraud affects the solemnity, regularity and orderliness of the proceedings of the Court and also amounts to an abuse of the process of Court, the Courts have been held to have inherent power to set aside an order obtained by fraud practised upon that Court. Similarly, where the Court is misled by a party or the Court itself commits a mistake which prejudices a party, the Court has the inherent power to recall its order.
It is thus law of the land that even administrative authorities have inherent powers to recall or revoke their own orders if such order was obtained by playing fraud on such public authority. As a necessary corollary if something is done by public authority at the behest of a person who played fraud, the same public authority can nullify that was done as vitiated by fraud. As observed by the Supreme Court in Indian Bank (supra), inherent powers spring not from legislation but from the nature and conservation of the authorities, to enable them to maintain their dignity, secure obedience to process and ensure transparency. This Court is able to place its hands on two decisions of the Supreme Court, in which the administrative authorities rectified their earlier orders on the ground of fraud and the same received approval by the Supreme Court. These are District Collector and Chairman, Vizianagaram v. M. Tripurasundari Devi and Union of India v. M. Bhaskaran 1995 Supp (4) SCC 100. In District Collector and Chairman, Vizianagaram (supra), persons who are not qualified were appointed as clerks in the District Administration ignoring the claims of those who were qualified. The Supreme Court held that appointment of an unqualified person amounts to fraud and therefore, such appointments can be withdrawn. The relevant observations are as under: It must further be realized by all concerned that when an advertisement mentions a particular qualification and an appointment is made in disregard to the same, it is not a matter only between the appointing authority and the appointee concerned. The aggrieved are all those who had similar or even better qualifications than the appointee or appointees but who had not applied for the post because they did not possess the qualifications mentioned in the advertisement. It amounts to a fraud on public to appoint persons with inferior qualifications in such circumstances unless it is clearly stated that the qualifications are relaxable. No Court should be a party to the perpetuation of the fraudulent practice.
It is therefore axiomatic that in India, the judicial, quasi judicial and administrative authorities have inherent powers to recall their orders or proceedings at a latter point of time if it is shown that such order was obtained by playing fraud and misrepresentation. The question of applicability of law of limitation to exercise such inherent power by the administrative authorities does not arise because fraud unravels everything rendering a fraudulent order void and non-existent. To our mind, this principle in a different manner is also adumbrated in Section 21 of General Clauses Act, 1897 (Central Act No. X of 1897). Under the said provision, an authority who has power to issue, inter alia orders has also power to rescind such order. Further, the Rule 117 of Registration Rules permits the registration of cancellation deed in the same class of register book as that in which original document which it cancels has to be registered. It is clearly not possible to accept the submission that Registering Officer has no power to accept and register a cancellation deed cancelling the earlier sale deed. Such an interpretation would not subserve public interest and if the Registering Officer is not given such power, it would further harm public interest and public policy. Nobody can deny that in a civilized society regulated by rule of law, the person with valid title must have the liberty to enjoy his property and such liberty cannot be deprived of without proper procedure under law.
The person, who has ex facie right whether such right is registered or not can always approach the registering authority, with a request to cancel a sale deed, which was registered earlier by such registering authority by showing that subsequent registration was obtained by fraud by a person who is not entitled to transfer the property or that such transfer was registered by playing fraud on the owner or on the stranger. In the present statutory dispensation, namely Transfer of Property Act, Contract Act, Specific Relief Act and Registration Act, the Court does not see any prohibition operating on the exercise of inherent power by the registering authority to cancel the sale deed earlier registered, which is likely to cause prejudice to the true owner as well as to the entire public at large.
In Gujarat Bottling Co. Ltd. & Ors Vs. Coca Cola Co. & Ors it SC has held that:- "The grant of an interlocutory injunction during the pendency of legal proceedings is a matter requiring the exercise of discretion of the court. While exercising the discretion the court applies the following tests - (i) whether the plaintiff has a prima facie case; (ii) whether the balance of convenience is in favour of the plaintiff; and (iii) whether the plaintiff would suffer an irreparable injury if his prayer for interlocutory injunction is disallowed. The decision whether or not to grant an interlocutory injunction has to be taken at a time when the existence of the legal right assailed by the plaintiff and its alleged violation are both contested and uncertain and remain uncertain till they are established at the trial on evidence. Relief by way of interlocutory injunction is granted to mitigate the risk of injustice to the plaintiff during the period before that uncertainty could be resolved. The object of the interlocutory injunction is to protect the plaintiff gainst injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial. The need for such protection has, however, to be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated."
A bench comprising Justices R V Raveendran and J M Panchal also issued notices to the Union government and the states of Punjab, Haryana, Delhi, Uttar Pradesh and Maharashtra seeking details of the steps taken or proposed to be taken by the respective states to deal with the chaotic situation arising from such transactions.
The apex court, while directing the matter to be listed for hearing in the last week of August, has also directed the states to inform the court whether power of attorney sales (that is, transactions involving execution of sales agreement/GPA/will) instead of regular sales are prevalent in their respective states and sought the views of the respective state governments in respect of such transactions.
Justice Raveendran, writing a 13-page judgement for the bench noted, "whatever be the intention, the consequences are disturbing and far-reaching, adversely affecting the economy, civil society and law and order.
Firstly, it enables large-scale evasion of income tax, wealth tax, stamp duty, and registration fees, thereby denying the benefit of such revenue to the government and the public.
Secondly, such transactions enable persons with undisclosed wealth/income to invest their black money and also earn profit/ income, thereby encouraging circulation of wealth, and corruption.
This kind of transaction has disastrous collateral effects also. For example, when the market value increases, many vendors (who effected power of attorney sales without registration) are tempted to re-sale the property taking advantage of the fact that there is no registered instrument or record in any public office, thereby cheating the purchaser.
When the purchaser under such 'power of attorney sales' comes to know about the vendor section, he invariably tries to take the help of musclemen to sort out the issue and protect his rights.
On the other hand, real estate mafia many-a-times purchase properties which are already subject to power of attorney sales and then threaten the previous power of attorney sales purchasers from asserting their rights.
Either way, such power of attorney sales indirectly leads to growth of real estate mafia and criminalisation of real estate transactions."
In recent days there is increased negligence of police to register FIR on the basis of complaint. They are becoming more puppets under the hands of politicians rather than enforcers of law. I have collected observations of Karnataka High Court and Supreme Court of India regarding such matter in order to guide so many litigants desperately seeking their further step on such situations.
"Although it may not be strictly necessary for a complainant to approach the police before filing an application under Section 156(3) Cr.P.C, but as a matter of convenience and expedition, normally every genuine complainant first attempts to lodge an FIR at the police station. Thus most applications invoking Section 156(3) contain the averment that the police have (wrongly) refused to register the FIR of the cognizable offence. Section 154(1) makes it obligatory for officers in charge of
police stations to register FIRs of cognizable offences. If the officer in charge of police station refused to do so, the complainant has the remedy under Section 154(1) Cr.P.C. to send the substance of the FIR to the Superintendent of Police by post who has the power to investigate the offence himself or depute a subordinate officer to investigate. Experience shows that very few complainants avail of this right under
Section 154(1) Cr.P.C., apparently due to lack of knowledge. If even the Superintendent of Police also fails to act, in such a situation a complainant, if he wishes to pursue the matter further, adopts one of the following two alternatives. Either he seeks a direction under Section 156(3) Cr.P.C. or he files complaint under
Chapter XV Cr.P.C. before the Magistrate. The causes for non-registration of FIR at police stations in cognizable case can vary widely. The overworked police may be indifferent to the common man's woes, the accused may be influential, registering of FIRs may be refused to keep the crime statistics of that police station low. Also, in some cases the police may be aware of the true state of affairs and may refuse to register false or pre-emptive FIRs." Says Allahabad High Court in a case decided in 2002.
The court further observed that The scheme of Cr.P.C. and the prevailing circumstances require that the option to direct the registration of the case and its investigation by the police should be exercised where some "investigation" is required, which is of a nature that is not possible for the private complainant, and which can only be done by the police upon whom statute has conferred the powers essential for investigation, for example .
(1) where the full details of the accused are not known to the complainant and the same can be determined only as a result of investigation, or
(2) where recovery of abducted person or stolen property is required to be made by conducting raids or searches of suspected places or persons, or
(3) where for the purpose of launching a successful prosecution of the accused evidence is required to be collected and preserved. To illustrate by example cases may be visualised where for production before Court at the trial (a) sample of blood soaked soil is to be taken and kept sealed for fixing the place of incident; or (b) recovery of case property is to be made and kept sealed; or (c) recovery under Section 27 of the Evidence Act; or (d) preparation of inquest report; or (e) witnesses are not known and have to be found out or discovered through the process of investigation.
In the case of Ramesh Kumari v. State (NCT of Delhi) and Ors. (2006) 2 SCC 677 this Court has held that the provision of Section 154 is mandatory. Hence, the police
officer concerned is duty-bound to register the case on receiving information disclosing cognizable offence. Genuineness or credibility of the information is not a condition precedent for registration of a case. That can only be
considered after registration of the case. The mandate of Section 154 of the Code is that at the stage of registration of a crime or a case on the basis of the
information disclosing a cognizable offence, the police officer concerned cannot embark upon an enquiry as to whether the information, laid by the informant is reliable and genuine or otherwise and refuse to register a case on the ground that the information is not relevant or credible. In other words, reliability, genuineness and credibility of the information are not the conditions precedent for registering a case under Section 154 of the Code.
It is pointed out that in Ramesh Kumari v. State (NCT of Delhi) and Ors. (AIR
2006 SC 1322) this Court had said that whenever cognizable offence is disclosed the police officials are bound to register the same and in case it is not done, directions to register the same can be given.
"If you once forfeit the confidence of our fellow citizens you can never regain their respect and esteem. It is true that you can fool all the people some of the time, and some of the people all the time, but you cannot fool all the people all the time", Said Abraham Lincoln. Supreme Court of India in Raghubir Singh v. State of Haryana (AIR 1980 SC 1087), took note of these immortal observations while deprecating custodial torture by the police. If it is assuming alarming proportions, now a days, all around it is merely on account of the devilish devices adopted by those at the helm of affairs who proclaim from roof tops to be the defenders of democracy and protectors of peoples' rights and yet do not hesitate to condescend behind the screen to let loose their men in uniform to settle personal scores, feigning ignorance of what happens and pretending to be peace loving puritans and saviours of citizens' rights. Supreme Court of India has in a large number of cases expressed concern at the atrocities perpetuated by the protectors of law. Justice Brandies's observation which have become classic are in following
immortal words: "Government as the omnipotent and omnipresent teacher teaches the whole people by its example, if the Government becomes a law breaker, it breeds contempt for law, it invites every man to become a law into himself".
Justice ARIJIT PASAYAT, J. said in a case of 2003 before Supreme Court of India Police excesses and the maltreatment of detainees/under- trial prisoners or suspects
tarnishes the image of any civilised nation and encourages the men in 'Khaki' to consider themselves to be above the law and sometimes even to become law unto themselves. Unless stern measures are taken to check the malady of the very fence eating the crops, the foundations of the criminal justice delivery system would be shaken and the civilization itself would risk the consequence of heading, towards total decay resulting in anarchy and authoritarianism reminiscent of barbarism. The courts must, therefore, deal with such cases in a realistic manner and with the sensitivity which they deserve, otherwise the common man may tend to gradually
lose faith in the efficacy of the system of judiciary itself, which if it happens will be a sad day, for any one to reckon with.
In a Judgement pronounced in High Court of Karnataka in 1998 itself it was observed that "Corruption in a civilised society is a disease like cancer, which if not detected in time is sure to malignise the polity of country leading to disastrous consequences. It is termed as plague which is not only contagious but if not controlled spreads like a fire in a jungle. Its virus is compared with HIV leading to AIDS, being incurable. It has also been termed as Royal thievery. The socio-political system exposed to such a dreaded communicable disease is likely to crumble under its own weight. Corruption is opposed to democracy and social order, being not only anti people, but aimed and targeted against them. It affects the economy and destroys the cultural heritage. Unless nipped in the bud at the earliest, it is likely to cause turbulence shaking of the socio- economic-political system in an otherwise healthy, wealthy, effective and vibrating society."
Kharab land is so called because it is not cultivable and is classification made for purposes of revenue exemption, Kharab land is also capable of ownership and cannot be regarded as an adjunct to cultivable land which gets transferred along
with the cultivable land. Acquisition of title to the kharab land is similar to acquisition of title to the cultivable land.
The word "Phut Kharab" and 'pot' kharab mean and have reference to a land which is
included in an assessed survey number but which is unflit for cultivation. Every pot kharab land does not belong to government. For the purpose of assessment, the uncultivable portion of the land or phut kharab portion of the land is excluded from consideration on the ground that it is cultivable. But it does not cease to belong to the owner of the survey number. In volume I of the Mysore Revenue Manual, the word kharab is explained in this way. The expression 'phut kharab' is similar to the expression 'pot kharab'. That is so, is clear from the Mysore Revenue Survey Manual where at page 68 the words 'pot kharab' land is defined thus: "(13). Pot kharab means a piece of pieces of land classed as unarable and included in a survey number".
The words phut Kharab, therefore, mean and have reference to a land which is included in an assessed survey number but which is unfit for cultivation.
After coming into the force of the Karnataka Land Revenue Act 1964 the word phut Kharab has been defined under Rule 21(2) as under- "during the process of classification, land included as unarable shall be treated as "Pot Kharab". Pot Kharab land may be classified as follows.
(a) That which is classified as unfit for agriculture at the time of survey including the farm buildings or threshing flours of the holder;
(b) That which is not assessed because, (i) it is reserved or assigned for public purpose; (ii) it is occupied by a road or recognised footpath or by a tank or stream used by persons other than the holders for irrigation, drinking or domestic purposes; (iii) used as burial ground or cremation ground; (iv) assigned for villager potteries."
Therefore, it becomes clear if the land falls within the category of 21(2)(a) (A KHARAB) it is not a government land, it belongs to the ownership of the land owner. If it falls under 21(2)(b) (B KHARAB) then it belongs to the government and the land owner cannot have a claim over the said land.
B.K. MUNIRAJU v. STATE OF KARNATAKA & ORS
CASE NO.: Appeal (civil) 1320 of 2008
DATE OF JUDGMENT: 15/02/2008
BENCH: Tarun Chatterjee & P. Sathasivam
We have already referred to the recitals in the document produced before the High Court which though titled as certificate of grant/Saguvali chit, various terms and conditions make it clear that the land was purchased by Motappa in a public auction on payment of a price for Rs.408.12. In addition, the two authorities as well as the High Court adverted to the revenue extract and concluded that it was not a "granted land" and it was purchased in a public auction on payment of a price. In the light of the factual conclusion, we are satisfied that the High Court has rightly refused to quash the orders of the said authorities and dismissed the writ petition. If the factual finding that the subject-matter of the land was a "granted land" undoubtedly it attracts bar under Section 4 of the Act and follow the conditions as stated in Rule 43 (1) (5) and (8). (17)
The document in question which is filed as Annexure P-3, has been styled or titled as "Certificate of Grant". In order to know the real nature of the document, one has to look into the recitals of the document and not the title of the document. The intention is to be gathered from the recitals in the deed, the conduct of the parties and the evidence on record. It is settled law that the question of construction of a document is to be decided by finding out the intention of the executant, firstly, from a comprehensive reading of the terms of the document itself, and then, by looking into to the extent permissible : the prevailing circumstances which persuaded the author of the document to execute it. With a view to ascertain the nature of a transaction, the document has to be read as a whole. A sentence or term used may not be determinative of the real nature of transaction. Reference in this regard can be made to the following cases i.e. Vidhyadhar vs. Manikrao & Anr., (1999) 3 SCC 573, Subbegowda (Dead) by LR. vs. Thimmegowda (Dead) by LRs., (2004) 9 SCC 734 and Bishwanath Prasad Singh vs. Rajendra Prasad & Anr., (2006) 4 SCC 432.
BHADRAPPA (D) BY LRS. v. TOLACHA NAIK
CASE NO.: Appeal (civil) 7782 of 2001
DATE OF JUDGMENT: 08/01/2008
BENCH: Dr. ARIJIT PASAYAT & P. SATHASIVAM
In Guntaiah and Ors. v. Hambamma and Ors. (2005 (6) SCC 228 at para 14) it was noted as follows: "It is also pertinent to note that the prohibition regarding alienation is a restrictive covenant binding on the grantee. The grantee is not challenging that condition. In all these proceedings, challenge is made by the third party who purchased the land from the grantee. The third party is not entitled to say that the conditions imposed by the grantor to the grantee were void. As far as the contract of sale is concerned, it was entered into between the Government and the grantee and at that time the third-party purchaser had no interest in such transaction. Of course, he would be entitled to challenge the violation of any statutory provisions but if the grant by itself specifically says that there shall not be any alienation by the grantee for a period of 15 years, that is binding on the grantee so long as he does not challenge that clause, more so when he purchased the land, in spite of being aware of the condition.
When Act 2 of 1979 was challenged, this Court observed in Manchegowda v. State of Karnataka (SCC pp. 310-11, para 17) "17.Granted lands were intended for the benefit and enjoyment of the original grantees who happen to belong to the Scheduled Castes and Scheduled Tribes. At the time of the grant, a condition had been imposed for protecting the interests of the original grantees in the granted lands by restricting the transfer of the same. The condition regarding the prohibition on transfer of such granted lands for a specified period, was imposed by virtue of the specific term in the grant itself or by reason of any law, rule or regulation governing such grant. It was undoubtedly open to the grantor at the time of granting lands to the original grantees to stipulate such a condition the condition being a term of the grant itself, and the condition was imposed in the interests of the grantee. Except on the basis of such a condition the grantor might not have made any such grant at all. The condition imposed against the transfer for a particular period of such granted lands which were granted essentially for the benefit of the grantees cannot be said to constitute any unreasonable restriction. The granted lands were not in the nature of properties acquired and held by the grantees in the sense of acquisition, or holding of property within the meaning of Article 19(1)( f ) of the Constitution. It was a case of a grant by the owner of the land to the grantee for the possession and enjoyment of the granted lands by the grantees and the prohibition on transfer of such granted lands for the specified period was an essential term or condition on the basis of which the grant was made. It has to be pointed out that the prohibition on transfer was not for an indefinite period or perpetual. It was only for a particular period, the object being that the grantees should enjoy the granted lands themselves at least for the period during which the prohibition was to remain operative. Experience had shown that persons belonging to Scheduled Castes and Scheduled Tribes to whom the lands were granted were, because of their poverty, lack of education and general backwardness, exploited by various persons who could and would take advantage of the sad plight of these poor persons for depriving them of their lands. The imposition of the condition of prohibition on transfer for a particular period could not, therefore, be considered to constitute any unreasonable restriction on the right of the grantees to dispose of the granted lands. The imposition of such a condition on prohibition in the very nature of the grant was perfectly valid and legal."
KALIYAMMA & ORS. v. DEPUTY COMMNR.CHITRADURGA DISTT. & ORS.
CASE NO.: Appeal (civil) 7875-7876 of 2001
DATE OF JUDGMENT: 03/01/2008
BENCH: Dr. ARIJIT PASAYAT & P. SATHASIVAM
The Assistant Commissioner came to hold that when the grant was in favour of general category, the allotment was in Form-I and when it is in the name of persons belonging to the Schedule Castes and Schedule Tribes, it is in Form II.
Legal representatives of the grantee filed appeal under Section 5A of the Act before the Deputy Commissioner. The said Authority allowed the appeal and set aside the order of the Assistant Commissioner holding that in these cases grant has been made during 1957 under the Land Revenue Code and the right of possession in respect of the grantee is limited. It was noticed that there was a condition not to alienate the land in question for a period of 10 years. In these cases the alienation took place much before completion of the ten years' period. Since the land was alienated during the non-alienable period, the land vested with the Government. It was also noticed that the period would be 30 years (for adverse possession) and not 12 years as contented.
The matter was challenged by the appellants before the learned Single Judge who dismissed the writ petition but inter alia directed as follows: "Whether respondents 2 & 3 have been the legal heirs of the grantee either as sons or adopted sons or in any manner under the law. That question has yet to be decided by the Assistant Commissioner when he has to restore the land to the grantee or his heirs in pursuance of the appellate order. Before actual delivering and restoring possession, the Assistant Commissioner should examine this question and if grantee or heirs are found in possession, the possession has to be restored to them. But if it is not practicable and possible to restore possession of the granted land to the grantee or his heirs under Section 5(1)(b) later part will automatically stand vested in the Government."
MANCHEGOWDA ETC. v. STATE OF KARNATAKA ETC.PETITIONER: MANCHEGOWDA ETC.
DATE OF JUDGMENT17/04/1984
AIR 1984 SC 1151
Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978, Sections 4 & 5, constitutional validity-Whether the prohibition of transfer of granted lands and Resumption or restitution thereof without payment of compensation or providing any appeal for such orders of resumption violates Art. 19 (1) (f), 31 and 31A of the Constitution-Whether making such special provisions only with regard to Scheduled Castes and Scheduled Tribes to the exclusion of persons belonging to other communities, violated Art. 14 of the Constitution.
The High Court of Karnataka for reasons recorded as quoted below in the Judgment upheld the validity of the Act and dismissed the petitions.
Sections 4 & 5 of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfers of Certain Lands) Act, 1978 is constitutionally valid.
However, the provisions of the Act must be read down and held that the Act will apply to transfers of granted lands made in breach of the condition imposing prohibition of 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 land 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. S. 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. 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 ss. 4 & 5 become applicable only when granted lands are transferred in breach of the condition relating to prohibition of such 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 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. the provisions of appeal has been incorporated by the Amending Act which received the assent of the Governor on the 29th February, 1984 and first came to be published in the Karnataka Gazette Extraordinary on the 3rd day of March, 1984, the Deputy Commissioner to whom the appeal will be presented will no doubt take this fact into consideration in deciding the question of limitation in regard to any appeal which may be filed against an order of the Assistant Commissioner; if any appeal is preferred within a period of three months from the date the amended provision conferring the right of appeal came into force, the Deputy Commissioner taking into consideration the fact that a period of three months has been prescribed for preferring an appeal from the date of the order of the Assistant Commissioner, may have no difficulty in entertaining the appeal by condoning the deal under s. 5 of the Limitation Act in terms of the power conferred on the Deputy Commissioner under the said s. 5A, provided the Deputy Commissioner is satisfied that the appeal is otherwise maintainable and the interest of justice requires that the appeal should be entertained and not be thrown out on the ground of limitation.
It is no doubt true that before the passing of the present Act any transfer of granted land in breach of the condition relating to prohibition on such transfer would not have the effect of rendering the transfer void and would make any such transfer only voidable. But the State, consistently with the directive principles of the Constitution, has made it a policy and very rightly, to preserve, protect and promote the interest of the Scheduled Castes and Scheduled Tribes which by and large form the weaker and poorer sections of the people in our country. This may be said to be the declared policy of the State and the provisions seeking to nullify such transfers is quite in keeping with the policy of the State which may properly be regarded as public policy for rendering social and economic justice to these weaker sections of the society.
In pursuance of this policy, the legislature is undoubtedly competent to pass an enactment providing that transfers of such granted lands will be void and not merely voidable for properly safeguarding and protecting the interests of the Scheduled Castes and Scheduled Tribes for whose benefit only these lands had been granted. Even under the Contract Act, any Contract which is opposed to public policy is rendered void.
Even in the absence of any such statutory provisions, the transfer of granted lands in contravention of the terms of the grant or in breach of any law, rule or regulation covering such grant will clearly be voidable and the resumption of such granted lands after avoiding the voidable transfers in accordance with law will be permitted. Avoidance of such voidable transfers and resumption of the granted lands through process of law is bound to take time Any negligence and delay on the part of the authorities entitled to take action to avoid such transfers through appropriate legal process of law is bound to take time. Any negligence and dealy on the part of the authorities entitled to take action to avoid such transfers through appropriate legal process for resumption of such grant may be further impediments in the matter of avoiding such transfers and resumption of possession of the granted lands. Prolonged legal proceedings will undoubtedly be prejudicial to the interests of the members of the Scheduled Castes and Scheduled Tribes for whose benefit the granted lands are intended to be resumed.
As transfers of granted lands in contravention of the terms of the grant or any law, regulation or rule governing such grants can be legally avoided and possession of such lands can be recovered through process of law the Legislature for the purpose of avoiding delay and harassment of protracted litigation and in furthering its object of speedy restoration of these granted lands to the members of the weaker communities is perfectly competent to make suitable provision for resumption of such granted lands by stipulating in the enactment that transfers of such lands in contravention of the terms of the grant or any regulation, rule or law regulating such grant will be void in providing a suitable procedure consistent with the principles of natural justice for achieving this purpose without recourse to prolonged litigation in Court in the larger interests of benefiting the members of the Scheduled Castes and Scheduled Tribes.
Any person who acquires such granted land by transfer from the original grantee in breach of the condition relating to prohibition on such transfer must necessarily be presumed to be aware of the prohibition imposed on the transfer of such granted land, and they cannot be considered to be a bona fide purchaser for value; and every such transferee acquires to his knowledge only avoidable title to the granted land. The title acquired by such transfer is defeasible and is liable to be defeated by an appropriate action taken in this regard. If the Legislature under such circumstances seek to intervene in the interests of these weaker sections of the community and choose to substitute a speedies and cheaper method or recovery of these granted lands which were otherwise liable to be resumed through legal process, it cannot be said that any vested rights of the transferees are affected. Transferees of granted lands with full knowledge of the legal position that the transfers made in their favour in contravention of the terms of grant or any law, rule or regulation governing such grant are liable to be defeated in law, cannot and do not have in law or equity, a genuine or real grievance that their defeasible title in such granted lands so transferred is, in fact, being defeated and they are being dispossessed of such lands from which they were in law liable to be dispossessed by process of law.
The position will, however, be somewhat different where the transferees have acquired such granted lands not in violation of any term of the grant of any law regulating such grant as also where any transferee who may have acquired a defeasible title in such granted lands by the transfer thereof in contravention of the terms or the grant or any law regulating such grant has perfected his title by prescription of time or otherwise.
But where the transferee acquires only a defeasible title liable to be defeated in accordance with law, avoidance of such defeasible title which still remains liable to be defeated in accordance with law at the date of commencement of the Act and recovery of the possession of such granted land on the basis of the provisions contained in ss. 4 & 5 of the Act cannot be said to be constitutionally invalid and such provision cannot be termed as unconscionable, unjust and arbitrary.
Granted lands were intended for the benefit and enjoyment of the original grantees who happen to belong to the Scheduled Castes and Scheduled Tribes. The condition imposed against the transfer for a particular period of such granted lands which were granted essentially for the benefit of the grantees cannot be said to constitute any unreasonable restriction. The granted lands were not in the nature of properties acquired and held by the grantees in the sense of acquisition, or holding or property within the meaning of Art. 19 (1) (f) of the Constitution. It was a case of a grant by the owner of the land to the grantee for the possession and enjoyment of the granted lands by the grantees and the prohibition on transfer of such granted lands for the specified period was an essential term or condition on the basis of which the grant was made. The prohibition on transfer was not for an indefinite period or perpetual. It was only for a particular period, the object being that the grantees should enjoy the granted lands themselves at least for the period during which the prohibition was to remain operative. Persons belonging to scheduled castes and scheduled tribes to whom the lands were granted were, because of their poverty, lack of education and general backwardness, exploited by various persons who could and would take advantage of bona fide the said plight of these poor persons for depriving them of their lands. The imposition of the condition of prohibition on transfer for a particular period could not, therefore, be considered to constitute any unreasonable restriction on the right of the grantees to dispose of the granted lands. The imposition of such a condition on prohibition in the very nature of the grant was perfectly valid and legal.
The transferees of the granted lands from the original grantees, acquired the lands improperly and illegally in contravention of the condition imposed on such transfers. Such transferees must have been aware and must in any event be deemed to have been aware of the condition regarding the prohibition on transfer and they cannot be considered to be bona fide transferees for value. Such persons acquired in the granted lands only avoidable title which was liable to be defeated and possession of such lands could be resumed from such transferees. Such a person who only acquires a defeasible legal right cannot make a grievance of any violation of Art. 19 (1) (f) of the Constitution, when the defeasible legal right is, in fact, defeated by appropriate legal action or by any suitable provision enacted in an Act passed by the competent legislature. Further in most cases such transferees have after the transfer, which is liable to be avoided in accordance with law, enjoyed for a sufficiently long period the benefits of lands transferred to them before the lands could be recovered from them Art. 19 (1) (f), therefore, did not invalidate s. 4 of the Act.
The right or property which a transferee acquires in the granted lands, is a defeasible right and the transferee renders himself liable to lose his right or property at the instance of the grantor. This kind of defeasible right of the transferee in the granted lands cannot be considered to be property as contemplated in art. 31 and 31A. The nature of the right of the transferee in the granted lands on transfer of such lands in breach of the condition prohibition relating to such transfer, the object of such grant and the terms therefore, also the law governing such grants and the object and the scheme of the presents Act enacted for the benefit of the weaker sections of our community, clearly go to indicate that there is in this case no deprivation of such right or property as may attract the provisions of Art. 31 and 31A of the Constitution. With the enactment of the Act, the, voidable right or title of the transferee in the grant lands becomes void and the transferee is left with no right or property in the granted lands. The lands which are sought to be recovered from the transferees of the granted lands are lands in which the transferees cease to have any interest or property. The effect of the provisions contained in ss. 4 & 5 of the Act is that the defeasible right or interest of the transferees in the granted lands is defeated and the voidable transaction is rendered void. As soon as such transferees are rendered void by virtue of the provisions of the Act transferee does not have any right in the granted lands so transferred, and possession is sought to be recovered of such lands in which the transferees have lost their right and interest. Therefore, the question of acquisition of any property by the State or any modification or extinguishment of right of property does not really arise and Art. 31A cannot be applied. Therefore, there is no infringement of Arts. 31 & 31A of the Constitution.
The special provisions made for the resumption of granted lands originally granted to the members of Scheduled Castes and Scheduled Tribes and resoration of the same to the original grantees or their heirs and legal representatives and falling them to other members of these communities do not infringe Art. 14 of the Constitution. This Act has undoubtedly been passed for the benefit of members of the Scheduled Castes and Scheduled Tribes who are recognised as backward citizens and weaker sections in the country. There cannot be any manner of doubt that persons belonging to Scheduled Castes and Scheduled Tribes can be considered to be separate and distinct classes particularly in the matter of preservation and protection of their economic and educational interests. In view of the peculiar plight of these two classes, the Constitution in Art. 15 (4) makes specific mention of these two classes and in Art.16 (4) speaks of backward class of citizens. One of the directive principles as contained in Art. 46 of the Constitution enjoins that "the State shall promote with special care and educational and economic interests of the weaker sections of the people and in particular of the Scheduled Castes and Scheduled Tribes and shall protect them from social injustice and all forms of exploitation." The object of this Act is to protect and preserve the economic interests of persons belonging to Schedule Castes and Scheduled Tribes and to prevent their exploitation. For the purpose of the present Act, the classification has a clear nexus to the object sought to be achieved.
SC BY UPHOLDING AND QUOTING ABOVE OBSERVATIONS STATED FURTHER THAT :-
Any person who acquires such granted land by transfer from the original grantee in breach of the condition relating to prohibition on such transfer must necessarily be presumed to be aware of the prohibition imposed on the transfer of such granted land. Anybody who acquires such granted land in contravention of the prohibition relating to transfer of such granted land cannot be considered to be a bona fide purchaser for value and every such transferee acquires to his knowledge only a voidable title to the granted land. The title acquired by such transfer is defeasible and is liable to be defeated by an appropriate action taken in this regard. If the Legislature under such circumstances seek to intervene in the interests of these weaker sections of the community and choose to substitute a speedier and cheaper method of recovery of these granted lands which were otherwise liable to be resumed through legal process, it cannot, in our opinion, be said that any vested rights of the transferees are affected. Transferees of granted lands with full knowledge of the legal position that the transfers made in their favour in contravention of the terms of grant or any law, rule or regulation governing such grant are liable to be defeated in law, cannot and do not have in law or equity, a genuine or real grievance that their defeasible title in such granted lands so transferred is, in fact, being defeated and they are being dispossessed of such lands from which they were in law liable to be dispossessed by process of law. The position will however, be somewhat different where the transferees have acquired such granted lands not in violation of any term of the grant or any law regulating such grant as also where any transferee who may have acquired a defeasible title in such granted lands by the transfer thereof in contravention of the terms of the grant or any law regulating such grant has perfected his title by prescription of time or otherwise. We shall consider such cases later on. But where the transferee acquires only a defeasible title liable to be defeated in accordance with law, avoidance of such defeasible title which still remains liable to be defeated in accordance with law at the date of commencement of the Act and recovery of possession of such granted land, on the basis of the provisions contained in s. 4 and s. 5 of the Act cannot be said to be constitutionally invalid and such a provision cannot be termed as unconscionable, unjust and arbitrary.
Granted lands were intended for the benefit and enjoyment of the original grantees who happen to belong to the Scheduled Castes and Scheduled Tribes. At the time of the grant a condition had been imposed for protecting the interests of the original grantees in the granted lands by restricting the transfer of the same. The condition regarding the prohibition on transfer of such granted lands for a specified period, was imposed by virtue of the specific term in the grant itself or by reason of any law, rule or regulation governing such grant. It was undoubtedly open to the grantor at the time of granting lands to the original grantees to stipulate such a condition the condition being a term of the grant itself, and the condition was imposed in the interests of the grantee. Except on the basis of such a condition the grantor might not have made any such grant at all. The condition imposed against the transfer for a particular period of such granted lands which were granted essentially for the benefit of the grantees cannot be said to constitute any unreasonable restriction. The granted lands were not in the nature of properties acquired and held by the grantees in the sense of acquisition, or holding of property within the meaning of Art. 19(1)(f) of the Constitution. It was a case of a grant by the owner of the land to the grantee for the possession and enjoyment of the granted lands by the grantees and the prohibition on transfer of such granted lands for the specified period was an essential term or condition on the basis of which the grant was made. It has to be pointed out that the prohibition on transfer was not for an indefinite period or perpetual. It was only for a particular period, the object being that the grantees should enjoy the granted lands themselves at least for the period during which the prohibition was to remain operative. Experience had shown that persons belonging to scheduled castes and scheduled tribes to whom the lands were granted were, because of their poverty, lack of education and general backwardness, exploited by various persons who could and would take advantage of the sad plight of these poor persons for depriving them of their lands. The imposition of the condition of prohibition on transfer for a particular period could not, therefore, be considered to constitute any unreasonable restriction on the right of the grantees to dispose of the granted lands. The imposition of such a condition on prohibition in the very nature of the grant was perfectly valid and legal.
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 ss. 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 title in such granted lands had perfected his title in the granted lands by proscription 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 loads 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. S. 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.
K.T. HUCHEGOWDA v. DEPUTY COMMISSIONERPETITIONER: K.T. HUCHEGOWDA
DATE OF JUDGMENT18/03/1994
BENCH: SINGH N.P. (J), AHMADI, A.M. (J), YOGESHWAR DAYAL (J)
1994 SCC (3) 536
On a plain reading, granted land will mean, any land granted by the Government to a person, who is a member of the Scheduled Castes or Scheduled Tribes which includes land allotted to such persons. Grant may be of different types; it may be by absolute transfer of the interest of the State Government to the person concerned; it may be only by transfer of the possession of the land, by way of allotment, without conveying the title over such land of the State Government. If by grant, the transferee has acquired absolute title to the land in question from the State Government, then subject to protection provided by the different provisions of the Act, he will be subject to the same period of limitation as is prescribed for other citizens by the provisions of the Limitation Act, in respect of extinguishment of title over land by adverse possession. On the other hand, if the land has been allotted by way of grant and the title remains with the State Government, then to extinguish the title that has remained of the State Government by adverse possession, by a transferee on the basis of an alienation made in his favour by an allottee, the period of limitation shall be 30 years. Incidentally, it may be mentioned that some of the States in order to protect the members of the Scheduled Tribes from being dispossessed from the lands which belong to them and of which they are absolute owners, for purpose of extinguishment of their title by adverse possession, have prescribed special period of limitation, saying that it shall be 30 years. In Bihar, vide Regulation No. 1 of 1969, in Article 65 of the Limitation Act, it has been prescribed that it would be 30 years in respect of immovable property belonging to a member of the Scheduled Tribes as specified in Part III to the Schedule to the Constitution (Scheduled Tribes) Order, 1950.
There is no dispute that so far as the Act with which we are concerned, no special period of limitation has been prescribed, in respect of lands which have been granted to the members of the Scheduled Castes and Scheduled Tribes with absolute ownership by the State Government. In this background, when this Court in the case of Sunkara Rajayalakshmi v. State of Karnataka' said that the period of limitation, which has to be taken into account for the purpose of determining, whether the title has been perfected by prescription, shall be that which runs against the State Government and therefore it would be 30 years and not 12 years, has to be read in context with the lands, the ownership whereof, has not been transferred absolutely, to the members of the Scheduled Castes and Scheduled Tribes; the lands having been only allotted to them, the title remaining with the State Government. The cases where the transfer by the State Government by way of grant has been absolute, then unless there is an amendment so far the period of limitation is concerned, it is not possible to apply the special limitation of 30 years, so far such grantees are concerned, when the question to be determined, is as to whether a transferee in contravention of the terms of the grant, has perfected his title by remaining in continuous and adverse possession. The transferee, who has acquired the land from the grantee, in contravention of the terms of the grant shall perfect his title by adverse possession by completing the period of 12 years.
When this Court said in its main judgment, in the case of Manchegowda v. State of Karnataka2 that in cases 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 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, has to be read, for purpose, of determining the period of limitation in respect of lands granted with absolute ownership, to mean 12 years and grant by way of allotment without transfer of the ownership in favour of the grantee, to mean 30 years.
Court has to examine the claim made by the appellant on the materials produced in support of the said claim, especially the deed of grant in favour of the original grantee, for the purpose of recording a finding as to whether the grant was in the nature of absolute transfer of the title of the State Government in favour of the grantee or it was a mere allotment for enjoyment of the lands in question, the title having remained with the State Government.
It need not be pointed out that any claim made on behalf of the appellant, that the grant by the State Government in favour of the original grantee was in the nature of absolute grant, reserving no right, title and interest and that transferee has perfected his title by continuous and adverse possession over such transferred land, shall be examined taking into consideration, as to whether the appellant had raised this question at the earliest opportunity i.e. before the Assistant Commissioner and what material had been produced by the appellant before the Assistant Commissioner in support of such claim. It need not be impressed that the object and the scheme of the Act is to protect the interest of the members of the Scheduled Castes and Scheduled Tribes, who shall be deemed to be a weaker section of our community and the transfer in favour of the appellant admittedly being in contravention of the terms of the grant in favour of the original grantee, heavy onus rests on the appellant, to show to the court that by his continuous and adverse possession, the right, title and interest of the grantee has been extinguished before the commencement of the Act.