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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