Friday, January 29, 2016

RESTRICTION ON PURCHASE OF SCHEDULE CASTES GRANT PROPERTY

RESTRICTION ON PURCHASE OF SCHEDULE CASTES GRANT PROPERTY


In a Democratic Country, welfare of the poor, depressed, have-nots is one of the concerns of the Government. To mitigate the suffering of such people government often grants land so that they cultivate the land and earn their livelihood. It imposes restrictions on transfer of such granted land for certain period to ensure that the desired welfare objectives are not defeated.  Members of Schedule Castes and Schedule Tribes are the most exploited.
As discussed many times, the sale and purchase of agricultural land in Karnataka has various restrictions. Government of Karnataka has put more severe restrictions on transfer of lands granted to Schedule Casts and Schedule Tribes. The relevant legislation is “the Karnataka Schedule Castes and Scheduled Tribes (prohibition of transfer of certain lands) Act 1978 and Rules 1979.
This is a social agrarian legislation to empower the downtrodden and also to prevent their exploitation. This Act has overriding effect and takes control of all granted lands, irrespective of law under which they were granted by it under Karnataka Land Reforms Act, Karnataka Land Revenue Act, Mysore Land Revenue Code or those of erstwhile provinces like Bombay, Coorg, Hyderabad, Madras and prohibits transfer of such lands without the permission of the Government. This Act has come into force from 01.07.1979.However; the Act covers lands granted even before the commencement of the Act.
Granted property, is any land granted by the Government of Karnataka to the person belonging to any of the Schedule Caste or Schedule Tribes. It also includes lands granted to such persons under any relevant law in force for the time being pertaining to agrarian reforms, land ceiling abolition of Inams except those relating to hereditary offices or rights, that is the lands granted under hereditary offices like thoti, Neeruganti etc. which are not covered under this Act.
The Presidential orders 1950, under articles 341 and 342 of the Constitution of India have proclaimed the state-wise list of Schedule Castes and Schedule Tribes.  The list has relevance to the State in which the members of the community reside.  A caste categorized as Schedule Caste in one state may not be so in another state.  Persons who do not follow religion of Hinduism, Sikhism and Buddhism are not deemed as members of Scheduled Castes.
The Act prohibits not only sale but also any type of transfer of land without prior permission of the government. The word transfer as used in this Act encompasses sale, gift, exchange, mortgage, lease or any other similar transaction.  It prohibits the mortgage whether with or without possession.  It includes creation of charge, or an agreement to sell, exchange, mortgage etc.But partition among family members and disposition by Will are not covered. Transfer of granted land to another member of Schedule caste or tribe is a violation of this Act.
Section 4 of this Act is more crucial and important.  It spells out that transfer of any land granted before commencement of this Act or after, in contravention of terms of Grant, is null and void which means such transfer is inoperative.  The transferee will not get legally valid title or interest or right to such property.
Further, it clearly mandates that any transfer of granted land needs prior permission of Government.  Permission of the Government is also necessary for sale of the land in execution of any decree or order of a civil court or any authority.  This makes it very clear that any transfer of granted land even after complying with terms of grant, needs the prior permission of Government.  Even entering into agreement to sell needs prior permission of the Government.
The land might have been granted free of cost, or at reduced price (upset price).  Reduced price means the price based on land revenue and not market price.  In many cases, the grantee, that is the person to whom the land was granted, will be asked to pay price equal to land revenue of some years.  It has been held in one case that prohibition of non-transfer of land can be imposed only in case of lands granted free of cost or reduced (upset) price.  Land granted on receipt of market price is sale and not grant.  But it is advisable to obtain permission from the Government for purchase of any type of grant land from members of Schedule Castes and Schedule Tribes.
The land is granted to the members of Schedule Castes and Tribes with certain conditions like:
1.The grantee shall not transfer the land for a period of 15 years from the date of taking possession.
2.The land should be brought under cultivation within three years from taking possession.
3.The grantee shall cultivate the land personally
4.The land shall be used for the purposes for which it was granted and any change of use requires prior permission of the Government.
5.The grantee shall plant within a period of one year one tree for every ten guntas or 10 trees for one hectare.
6.The land may be granted not only for agricultural purpose but also for constructing residential accommodation with restrictions on transfer.  Though the restriction on transfer of the granted land is 15 years, the government may permit the transfer after a lapse of five years depending upon the circumstances and the needs of the grantee. The procedure for grant of lands is governed by Karnataka Land Grant Rules 1969. Transfer of any type of lands granted to the members of Scheduled Caste/Tribe requires prior permission of the government.
Now we shall discuss the transfer of land granted to the members of Schedule Castes and tribes within the period of restriction on transfer or without the prior permission of the Government.As stated earlier the transferee will not get any legally valid tile, interest, right in such properties.  Further the Government, represented by the Assistant Commissioner, after an enquiry may take possession of such land by evicting the persons who are in possession of land.  However, sufficient opportunity will be provided to the transferor to present his version of the case.
After taking the possession of such transferred granted land the Government restores the land to the original grantee or his legal heirs.  If it is practically not possible to restore such land to the grantee or legal heirs, the land will vest with government, free of all encumbrances. The Government may grant such land to any other member of Schedule Cast or Schedule Tribe eligible for grant.  If the enquiring authority finds that the transfer of land has not violated any provisions of the Karnataka Schedule Caste and Schedule Tribes Act 1978, orders will be passed accordingly.
The Government has got powers to initiate action by the mere fact that the granted land is in the possession of a person other than original grantee or his legal heirs.  It is not necessary that the original grantee or his legal heirs to lodge the complaint.  Any interested person or on information provided by any person or the government on its own may initiate action. The Act also provides for appeal by the aggrieved persons who has lost possession of the land purchased.  He may appeal to the Deputy Commissioner having jurisdiction within three months from the date on which order of Assistant Commissioner was communicated to him.
Deputy Commissioner has also got powers to condone the delay in preferring appeal, if satisfied with the cause for delay. Deputy Commissioner will dispose the case based on merits. The Act prohibits the registration of any documents of transfer of such granted land without compliance of the provision of this Act that is without prior permission of the government.
Every registering office will be provided with a list of granted lands falling in its jurisdiction.  However, this prohibition will not apply to transfer of granted land in favour of State Government, Central Government, Local Authority or Bank. What is more serious is the punishment prescribed for acquiring the land granted to the Schedule Casts and Schedule Tribes in violation of the provisions of this Act that is without prior permission of the Government and in contravention of terms of grant.  Such transferee on conviction may be punished with imprisonment upto six months or fine up to Rupees Two Thousand or both.
Following are some of the important verdicts pertaining to the Act.
1.Unless proved otherwise, if a person other than grantee is in possession of the granted land, it has to be presumed that the land is transferred and it is null an void [ILR 1997 (1) KLR 474]
2.Possession by a trespasser will not amount to transfer under the Act [ILR 2002 (2) KAR2431]
3.Alienation to bank is not prohibited [ILR2002 (3) KAR 3780]
4.Alienation of granted land in the form of mortgage without prior permission of the Government is void [2000(2)KLR SN21]
5.When authority granting land has not imposed the condition of alienation, the authority issuing Saguvali Chit cannot impose such condition [ILR 1999 (1) KAR 261]
6.To avail the advantage of adverse possession, such possession should be for thirty years prior to the Act coming into force (1995 (5) KLJ732).
7.Whether the grant is for upset price or otherwise the prohibition is applicable [1991 (1) KLR 373].
8.Only when land was granted free or at reduced price, the only non-alienation condition can be imposed [1996 (3) KLJ 34 DB]
9.If the transferee has made some improvements he cannot claim compensation on eviction [1992 (4) KLJ1].
10.Even bits of land granted for house sites are covered by the Act [ILR 2001 (3) KAR 3753.:2001 (4) KCCR SN 320-DB].
11.Though the act is socio-agrarian legislation in its action aimed at improving the social and economic status of the members of Schedule Castes and Schedule Tribes, the chance of its misuse is not rare.  Many grantees, legal heirs sell the granted lands to innocent people who are unaware of the provisions of this Act and later on claim that such transfer as null and void.  Though ignorance of law is no excuse, the government should also educate the public and land records like RTC, RRPR etc should clearly indicate the nature of the land and restrictions on its transfer.
But the RTC or RRPR never discloses this prohibition. Though there is prohibition on registration of such land in the Act, there is no punitive provision for violation by sub-registrars. Many registering officers register the transfer of such granted land many times in connivance with the seller.
The ultimate victim will be the innocent purchaser who loses the property and money and is also at risk of facing imprisonment and fine.  Any social legislation should ensure that equity and justice is meted out to all and a fine balance is struck.
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