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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 11TH DAY OF JUNE, 2013
BEFORE
THE HON’BLE MR.JUSTICE ARAVIND KUMAR
WRIT PETITION NOs. 30318-30319/2009 (KVOA)
BETWEEN:
1. Sri.Boregowda,
Aged about 60 years, S/o Boregowda, Residing at Marenahalli village, Dudda Hobli, Mandya Taluk, Mandya District.
2. Sri.P.Bettegowda Aged about 64 years, S/o Parasegowda, Residing at Marenahalli Village,
Dudda Hobli, Mandya Taluk, Mandya District. ... Petitioners
(By Sri. Shankara Narayana Bhat, Advocate for M/s B.M.Krishna Bhat Associates) AND:
1. The Tahasildar,
Mandya Taluk, Mandya District.
2. Smt. Nagamma, W/o Ramaiah, Major, Residing at Besagarahalli Village Koppa Hobli,
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Maddur Taluk, Mandya District.
3. Smt. Kalamma, W/o Late Kenchaiah Major, Resident of M Kebbahalli Village, Dudda Hobli,
Mandya Taluk, Mandya District. (wrongly mentioned as Kullamma in the Order of the Tahasildar) …..Respondents
(By Sri. Shashidhar Karamadi, GA for R-1; Sri.K.Varaprasad, Advocate for R-2, R-3 served)
Writ petitions are filed under Article 226 and 227 of the Constitution of India, praying to call for records and quash the order of the Tahasildar, Mandya Taluk, Mandya District dated 7.10.2008 vide Annexure-B.
These petitions coming on for dictating judgment this
day, the Court made the following:
O R D E R
Petitioners are seeking for quashing of the order
passed by Tahsildar, Mandya Taluk, Mandya dated
07.10.2008 in HOA/51/2001-02 – Annexure-B
whereunder sale made by the original grantees in favour
of the petitioners have been set aside and lands in
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question are ordered to be resumed to the State for
being disposed of in accordance with law.
2. Heard Sri Shankaranarayan Bhat, learned
Advocate appearing for Sri B.M.Krishna Bhat for
petitioners, Sri Shashidhar Karamady, learned
Government Advocate appearing for respondent No.1
and Sri Varaprasad, Learned Advocate appearing for
respondents-2 and 3.
3. Challenge in these petitions is to the order
dated 07.10.2008 – Annexure-B declaring sale deeds
executed by original grantees in favour of petitioners is
void and contrary to the statutory provisions of
Karnataka Village Offices Abolition Act, 1961
(hereinafter referred to as the ‘Act’) and directing
forfeiture of said lands measuring 11 guntas in
Sy.No.47/3 and 36 guntas in Sy.No.48/2 of Maranahalli
village, Dudda Hobli, Mandya Taluk on the ground that
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there is violation of conditions of grant by invoking
Section 5 of the Act.
The contention of Mr.Shankaranarayan Bhat, learned
Advocate appearing for petitioners can be crystallized as
under:
(i) Under provisions of the Act, proceedings ought to
be initiated by the Deputy Commissioner as
contemplated under the said Act and Tahsildar
cannot exercise such jurisdiction since the Act
does not provide for delegation of power.
(ii) The alienation of lands in question had taken
place on 05.12.1998 and 07.06.1999 under two
sale deeds pursuant to the order of regrant dated
04.10.1987 and prohibition envisaged under sub-
section (3) of Section 5 of the Act for a period of 15
years is referable to the date of Amendment Act,
1978 coming into force and it is not the date of
regrant.
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(iii) He would submit that in the instant case, 15 years
prohibition period expired on 07.08.1993
inasmuch as, Amendment Act, 1978 which came
into effect from 07.08.1978 and reckoning 15
years period from the said date i.e., 07.08.1978,
15 years period would come to an end on
07.08.1993 and as such sale in favour of
petitioners by grantees which took place in 1998 &
1999 is saved.
(iv) Tahsildar committed a serious error in reading
into the order of regrant that 15 years non
alienation period has to be reckoned from the date
of regrant i.e., 04.10.1987 to arrive at a
conclusion that sale which took place during the
period 1998 and 1999 as void, is an erroneous
finding and order of regrant cannot be considered
as a starting period of limitation for reckoning the
period of 15 years.
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Hence, he contends that order passed by
Tahsildar is erroneous.
4. Per contra, Sri Varaprasad, learned Advocate
appearing for contesting respondents-2 and 3 would
contend that prior to amendment of the Principal Act,
the only requirement for alienation of regranted land
under sub-section (3) of Section 5 of the Act was with
the previous approval of Deputy Commissioner on
payment of amount equivalent to 15 times of the
amount of full assessment of the land and there was no
other requirement which was contemplated under the
said Act and by Amendment Act No.13/1978 sub-
section (3) came to be amended whereunder 15 years
period has been incorporated to be effective from the
date of commencement of Section (1) of the Amendment
Act and at the same time, proviso also came to be
inserted by Act No.27/1984 with effect from 04.04.1984
whereunder the previous consent of the Deputy
Commissioner for alienation of regranted land together
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with payment of amount equivalent to 15 times the
amount of full assessment of land came to be inserted.
He draws the attention of the Court to sub-section(4) of
Section 5 of the Act whereunder it has been held that
contravention of provisions of sub-section (3) would
render sale transaction null and void, as such, he
contends that in the instant case, order of regrant
having been passed on 04.10.1987 and alienation
having taken place within 15 years from the said date
i.e., sale having taken place during 1998 and 1999,
same is not only contrary to the terms of regrant
namely, prohibition of sale of regranted land for a period
of 15 years but it is also contrary to proviso to sub-
section (3) and sub-section (4) of Section 5 of the Act. As
such, he contends that order passed by the Tahsildar is
just and proper and does not call for interference.
5. In reply, Sri Shankaranarayan Bhat would draw
sustenance and support to his submissions by relying
upon the judgment of the co-ordinate Bench of this
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Court in the case of CHIKKA HUCHAIAH & ANOTHER
vs ASSISTANT COMMISSIONER, BANGALORE SUB-
DIVISION, BANGALORE reported in 1994(3) Kar.L.J 626
to contend that bar against sale of regranted land for 15
years, the computation of which will have to be made
from the date of commencement of Amendment Act and
not from the date of regrant as held therein and as
such, he seeks for allowing the writ petition by setting
aside the order passed by Tahsildar.
6. Having heard the learned Advocates
appearing for parties and on perusal of statutory
provisions of the Act, it is noticed that Karnataka Village
Offices Abolition Act was enacted to abolish the Village
Offices which was held hereditarily and said Act enabled
the Government to proceed with abolition of village
offices and incidents related thereto. Section 4(1) of the
Act abolished the Village Office from 01.02.1963.
Section 4(2) of the Act extinguished all incidents
appertaining to the said Village Office. Section 4(3) of
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the Act enabled resumption of all lands continued in
respect of or annexed to a Village Office by the State,
subject to the provisions of Sections 5, 6 and 7 of the
Act and provided that lands so resumed shall be
regranted subject to payment of land revenue under the
provisions of the Karnataka Land Revenue Act, 1964 as
if they were unalienated land or ryotwari land. Section
5(1) of the Act provides for regrant of the land resumed
under Section 4(3) of the Act to the holder of Village
Office. Section 5(2) of the Act relates to consequence of
non-payment of occupancy price under sub-section (1)
within the prescribed period and in the prescribed
manner and in which case, holder is deemed to be an
unauthorized occupant of a land liable for summary
eviction. Section 5(3) then existed, created a bar to
transfer the land regranted under sub-section (1)
otherwise than by partition amongst members of Hindu
Joint Family and by previous sanction of Deputy
Commissioner and such regrant to be granted only on
payment of land revenue, equivalent to 15 times of the
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amount of full assessment of the land. Sub-section (3) of
Section 5 of the Act came to be amended by Act
No.13/1978 with effect from 07.08.1978 or in other
words, sub-section (3) was substituted by the said
Amendment Act and simultaneously sub-section (4) and
sub-section (5) also came to be inserted by the very
same Amendment Act i.e., Act No.13/1978. However,
proviso to sub-section (3) was not incorporated or
brought into effect under the said Amendment Act and
it was only in the year 1984 i.e., by Act No.27/1984
with effect from 04.05.1994 said proviso to sub-section
(3) of Section 5 of the Act came to be inserted. The
marked difference which we find from amended and
unamended sub-section (3) is noticed herein below in
the comparative table:
Before Amendment After Amendment
5(3) The occupancy or the ryotwari patta of the land as the case may be, regranted under sub-section (1) shall not be
5(3) The occupancy of ryotwari patta of the land, as the case may be regranted under sub-section (1) shall not be
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transferable otherwise than by partition among members of Hindu Joint Family without the previous sanction of the Deputy Commissioner and such sanction shall be granted only on payment of an amount, equal to fifteen times the amount of full assessment of the land.
transferable otherwise than by partition among members of Hindu Joint Family for a period of 15 years from the date of commencement of Section 1 of the Karnataka Village Offices Abolition (Amendment) Act, 1978.
Section 6 of the Act provides for regrant of the land
resumed under Section 4(3) of the Act to authorized
village office holders.
7. As to what would be the effect of sub-section
(3) of Section 5 of the Amendment Act and the vires of
Amendment Act i.e., Act No.13/1978 was the subject
matter of consideration by a Division Bench of this
Court in the case of LAKSHMANA GOWDA & OTHERS
vs STATE OF KARNATAKA reported in ILR 1980 KAR
892 whereunder constitutional validity came to be
upheld and it was also held that omission to obtain
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previous sanction of the Deputy Commissioner under
the original sub-section (3) of Section 5 of the Principal
Act did not render a transfer of land void regranted
under Sections 5 or 6 or 7 of the Principal Act prior to
07.08.1978 (date of Amendment Act No.13/1978
coming into force), but such transfer can be regularized
by paying to the Government an amount equal to 15
times of full assessment of that land.
A co-ordinate Bench of this Court in the case of
GURUPUTRAPPA MALLAPPA HARKUNI vs THE
TAHSILDAR & OTHERS in W.P.No.11238/1984 opined
that if the regranted land had not been alienated with
prior permission before 07.08.1978, it could not be
alienated for a period of 15 years after 07.08.1978 as
this was the clear intention of the Amendment Act, i.e.,
Act No.13/1978 and as such, writ petition was
dismissed which came to be confirmed in
W.A.No.2700/1985 by a Division Bench of this Court
and matter came to be pursued before Hon’ble Apex
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Court and Hon’ble Apex Court, after noticing the
judgment of Division Bench of this Court in LAKSHMAN
GOWDA’s case referred to supra, upheld the decision
rendered in W.P.No.11238/1984 i.e., GURUPUTRAPPA’s
case and dismissed the special leave petition as
reported in AIR 1993 SC 98 .
8 Thereafter, a Division Bench of this Court
entertained a doubt as to whether two Division Bench
decisions of this Court in HANUMAIAH vs STATE OF
KARNATAKA reported in ILR 1987 KAR 550 and
CHIKKANARASAIAH vs THIRUPATHAIAH reported in
ILR 1989 KAR 1520 laid down the correct law in view of
the decision of Hon’ble Apex Court in STATE OF
KARNATAKA vs G SEENAPPA reported in ILR 1992 KAR
2177 and G.M.HARKUNI vs TAHSILDAR reported in AIR
1993 SC 98 and to determine the controversy as to
whether there was any conflict between the decision in
HANUMAIAH and CHIKKANARASAIAH on the one hand
and two decisions of another Division Bench of this
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Court in ADIVEPPA SHIVAPPA MATTUR vs TAHSILDAR
reported in ILR 1990 KAR 679 and G.M.HARKUNI vs
TAHSILDAR reported in ILR 1993 KAR 3020 and same
came to be placed before a Larger Bench as the said
four decisions of this Court were being interpreted in
different ways and Division Bench of this Court was of
the view that matter requires consideration by a larger
Bench and as such, matter came to placed before a Full
Bench in the case of SYED BHASHEER AHAMED &
OTHERS vs STATE OF KARNATAKA reported in ILR
1994 KAR 159.
9. Though several aspects came to be dealt by
their Lordships in SYED BHASHEER’s case, it would
suffice insofar as present factual matrix is concerned
which relates to question No.(iii) formulated therein and
it reads as under:
(iii) Whether the above questions are
decided in Lakshmana Gowda’s
case?”
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Since question Nos.(i) and (ii) are directly connected to
answer question No.(iii) and for understanding the
underlying intention of point No.(iii), these two
questions namely, question No.(i) and (ii) are extracted
herein below:
(i) “Whether the alienee from a ‘holder of Village Office’ or ‘authorised holder’
under an alienation which took place after the appointed date on which the Principal Act came into force (1.2.1963) and before the Amendment Act came into force (7.8.1978) would acquire title even if the re-grant under Section 5 or
6 as the case may be, is after 7.8.1978?
(ii) Alternatively, whether the alienation of a Service Inam Land by the holder or
authorized holder, in favour of an alienee, made between 1.2.1968 and 7.8.1978, would become null & void, if the re-grant under Section 5 or Section 6 was not made in favour of the alienor before 7.8.1978?”
For answering question No.(iii), statutory provisions of
the Act came to be analysised by their Lordships and in
conclusion, it was held as under:
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“(d) the date of re-grant whether
before or after 7.8.1978, will not be relevant to determine the validity of the alienation between
1.2.1963 and 7.8.1978, as what is prohibited after 7.8.1978 prospectively for a period of 15 years, is alienation and not re-grant.”
10. This decision came to be considered by a
Larger Bench in the case of B.HALESHAPPA vs STATE
OF KARNATAKA & OTHERS reported in ILR 2002 KAR
4306 confirming the finding recorded by the Full Bench
and contentions raised by the learned Government
Advocate therein that intention of the legislature was to
substitute sub-section (4) in Section 5 of the Act from
the date of commencement of the Principal Act i.e.,
01.02.1963 and wherefore sub-section (4) of Section 5
would be retrospective in its operation as expressed in
the above said sub-section and the finding that the said
sub-section (4) is not retrospective in its operation and
would apply to amended sub-section (3) and not to sub-
section (3) of the Principal Act as held in SYED
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BASHEER AHMED’s case referred to supra was held to
be incorrect and not acceptable. By referring to
paragraph 83 of the judgment in LAKSHMAN GOWDA’s
case cited supra whereunder contention had been
raised by learned Government Advocate that in view of
the provisions of Section 3(2) of the Amendment Act, the
provisions of sub-section (4) is retrospective and not
prospective was negatived in paragraphs 84, 85 and 86
of the Judgment in LAKSHMAN GOWDA’s case and
ultimately, at paragraph 87 their Lordships came to the
conclusion that provisions of Section 5(4) as inserted by
Amendment Act is prospective and applies to amended
sub-section (3) of the Principal Act and has negatived
the contention of learned Government Advocate. In
other words, the contention of learned Government
Advocate as well as learned Advocate General to
construe Amendment Act as retrospective i.e., from
01.02.1963 has been negatived as held in SYED
BASHEER AHAMED’s case cited supra, and it was held
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that 15 years period referred to in sub-section (3) is
referable to alienation and not to regrant.
11. Keeping the principles enunciated by their
Lordships in the above referred judgments, when the
facts on hand are examined, it would emerge that on
the basis of an application made by the original Village
Office Holder, order of regrant came to be passed on
04.10.1987 whereunder a condition has been stipulated
that from the date of such regrant, for a period of 15
years it should not be alienated. Full Bench has taken a
view that 15 years period is referable to alienation and
not to regrant and such a condition cannot be read into
the order of regrant or stipulated therein while passing
such order and as such, it has to be held in the instant
case that Tahsildar has committed a serious error in
taking the said fact to arrive at a conclusion that bar
created for 15 years period would start ticking from the
date of order of regrant i.e., 04.10.1987 to arrive at a
conclusion that sale which has taken place in the
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instant case on 05.12.1998 and 07.06.1999 to be
construed as void. This is highly impermissible when
the period of 15 years referred to in the statute has to
be understood in the manner as prescribed therein and
not otherwise. If the authorities have embarked upon an
exercise to infuse into the order of regrant something
which is not available in the statute, the only course of
action to be adopted by this Court is to ignore such
term imposed by the authorities which condition is
contrary to the statutory provisions. In the instant case,
the order of regrant as already noticed herein above, has
been made on 04.10.1987. Proviso to sub-section (3) of
Section 5 of the Act came into effect from the year 1984.
While interpreting the amended sub-section (3) of
Section 5 of the Act namely, the effect of not obtaining
prior approval of the Deputy Commissioner, this Court
has consistently held that it is not the prior approval
and as such, proviso by itself cannot be pressed into
service as is now sought to be made out by Sri
Varaprasad, learned Advocate appearing for
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respondents-2 and 3. In view of the fact that 15 years
period has to be reckoned from the date of
Amendment Act having come into force i.e., on
07.08.1978, the bar of 15 years would come to an end
on 07.08.1993 and as such, lands sold during 1998 and
1999 would not attract the provisions of sub-section (4)
of Section 5 of the Act to hold such sales as void.
12. This view also gets fortified from the fact that
legislature itself has brought about further amendment
to sub-section (3) of Section 5 of the Act whereunder for
the words and figures “after a period of 15 years from
the date of commencement of section 1 of the Karnataka
Village Offices Abolition (Amendment) Act, 1978” the
words “for a period of fifteen years from the date of
regrant made on or after the date of commencement of
the Karnataka Village Offices Abolition (Amendment)
Act, 2003” shall be substituted. In other words, 15
years period bar created under the amended sub-
section (3) which ended on 07.08.1993 remained in
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vacuum till Amendment Act of 22/2003 came into force.
It would also mean that during this period i.e., 1993 to
2003 there was no prohibition for such sale. Hence, in
the instant case, sale having taken place on 05.12.1998
and 07.06.1999, it would save the sale transactions in
question.
13. Insofar as the issue regarding Deputy
Commissioner should have exercised jurisdiction is
concerned, same would not detain this Court for too
long to negative said contention inasmuch as,
notification issued by the State Government in exercise
of its powers under Section 2(1)(d) of the Act dated
29.08.1979 also came to be considered by a co-ordinate
Bench of this Court in the case of G SHIVAMMA vs
K.L.SOMASHEKAR & OTHERS reported in 2010(1)
KCCR 56 whereunder it is held that notification issued
by the appropriate Government vesting the jurisdiction
in Tahsildar to perform the duties of Deputy
Commissioner envisaged under the Act would squarely
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cover the said contention and it would put to rest the
contention raised by Sri Varaprasad, and as such, said
contention is rejected.
14. Hence, for the reasons aforestated, following
order is passed:
(1) Writ petition is hereby allowed.
(2) The order dated 07.10.2008 – Annexure-B
passed by first respondent is hereby
quashed. Consequently, order passed by the
Addl.District Judge, Mandya in M.A.(VOA)
No.175/2008 dated 29.08.2009 holding that
appeal would not be maintainable has to be
necessarily upheld as it is in consonance
with statutory provisions.
(3) Petition in HOA/51/2001-02 filed by
respondent No.2 before first respondent
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seeking for regrant of the land in her favour
is hereby rejected.
(4) Parties to bear their respective costs.
Sd/- JUDGE *sp