REGARDING IMPROVEMENTS MADE ON THE LAND – NO PROTECTION – PTCL CASES

The Constitutional validity of the Act was upheld by Karnataka High Court in Judgment reported in I.L.R. 1982 KARNATAKA 1310, Krishnappa S.V. vs. State of Karnataka and later by the Supreme Court in the Decision . , Manche Gowda vs. State of Karnataka. 6. The Transfer of Property Act, 1982 was enacted by the Parliament to define and meet certain parts of the law relating to the transfer of property by act of parties. Section 5 of Transfer of Property Act provides that the expression "transfer of property" means an act by which the living person conveys property, in present or future, to one or more other living person. The transfers covered by Transfer of Property Act are transfers inter-vivos, between the living persons and transfers by operation of law are not covered. The transfer which attracts provisions of Section 4 of the Act are made by the grantee in favour of the transferee and in contravention of the terms of grant. The land is granted by the Government and the conditions of grant confers right on the Government to resume the land in case any of the terms of the grant is contravened. The Government Grants Act, 1895 was enacted to explain the Transfer of Property Act, 1882, so far as it relates to grants from the Government and to remove certain doubts as to the powers of the Government in relation to such grants. Section 2 of this Act inter-alia provides that nothing in the Transfer of Property Act, 1882 shall apply or shall be deemed ever to have applied to any grant made by or on behalf of Government and every such grant shall be construed and take effect as if the Transfer of Property Act had not been passed. Section 3 of this Act then prescribed that all prohibitions, restrictions, conditions and limitations contained in any grant shall be valid and shall take effect according to tenor, and not Rule of Law, statutory enactment of Legislature to the contrary notwithstanding. The plain reading of Sections 2 and 3 of this Act makes it clear that the provisions of Transfer of Property Act have no application in respect of transfers effected by the Government by nature of grant. The Supreme Court in the Decision , State of UP. of Zahoor Ahmad & Anr. observed that the effect of Section 2 of Government Grants Act is that in the construction of an instrument governed by the Government Grants Act the Court shall construe such grant irrespective of the provisions of the Transfer of Property Act. The grant shall be construed to take effect as if the Transfer of Property Act does not apply. The lands in respect of which the Assistant Commissioner holds that the transfer is null and void under Section 4 of the Act are the lands granted by the Government and consequently the provisions of the Transfer of Property Act will have no application while resuming the lands under Section 5 of the Act………………… 7. Even assuming that the provisions of Transfer of Property Act, especially Section 51 of the said Act, is applicable, still the contention that the transferee is entitled to the benefit of the improvements made cannot be accepted. In the first instance, the transfers are declared null and void and the said transfer is deemed not to have conveyed any right, title or interest in favour of the transferee under Section 4 of the Act. Once the transaction is declared null and void, then in the eyes of law the transaction had never taken place and consequently the transferee cannot claim any benefit flowing from such transaction and claim cannot be made in respect of improvements made in pursuance of the transaction. Secondly, Section 51 of the Transfer of Property Act is attracted where the immovable property is transferred and improvements are made by the transferee in good faith that the transferee is absolutely entitled to the property. ……..It is a far cry to suggest that the transferee has made the improvements in good faith or the transfer war secured bona fide. The transferee was fully conscious that the transferee is in possession of the land under a grant issued by the Government and the terms and conditions of the grant specifically prohibits the transferor from alienating the land for a duration of 15 years from the date of grant It is impossible even to suggest that the transferee, who secured the transfer within the period of prohibition, can claim that the transferee acted bona fide and in good faith made improvements on the land. Thirdly, the benefit of Section 51 is available only to a certain category of transferees. The Section prescribes that when the transfree who made improvements in good faith is subsequently evicted by any person having a better title, then only the transferee has a right to require the person causing the eviction to value the improvements and pay the same. The crucial words are transferee is subsequently evicted by any person having a better title. The transferee is evicted by the Assistant Commissioner in exercise of statutory power under Section 5 of the Act and not because the Assistant Commissioner has a better title than that of the transferee. The eviction takes place because the transfer is null and void being in contravention of the terms of the grant made in favour of a member of Scheduled Caste or Scheduled Tribe, The granted land always belong to the Government and the grantee was not entitled to alienate the land during the prohibited period and the Government had a right to resume the same. The right which flows to the transferee under Section 51 of the Transfer of Property Act is available only when the transferee is evicted by a person having better titfe and in our judgment, such a contingency does not arise when the transferee is evicted under Section 5 of the Act because the transfer is declared as null and void under Section 4 of the Act.