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1989 DIGILAW 125 (KAR)

SAROJAMMA v. STATE OF KARNATAKA

1989-04-03

H.G.BALAKRISHNA

body1989
BALAKRISHNA, J. ( 1 ) THE petitioner has sought for quashing the impugned orders in Annexures 'a' and 'c and for a direction to the concerned authorities to regrant land in Sy. No. 31 of kasaba, Kolar, measuring 1 acre 15 guntas in favour of the erstwhile inam holders and for regularisation of the sale of land in favour of the petitioner. ( 2 ) THE material facts are that Sy. No. 31 consisting of 7 acres 31 guntas constitutes thoti inamthi land. The vendor of the petitioner is Smt. G. Ani Mary who purchased 1 acre 15 guntas of land in Sy. No. 31 under a registered sale deed dated 23-8-1971 executed by respondents-3 and 4 and their father late Selavadi Muniswamy. The claims of the petitioner are in the capacity of purchaser in possession of the land. ( 3 ) THE petitioner herself purchased the identical land in Sy. No. 31 from Smt. G. Ani mary by virtue of a registered sale deed dated 26-11-1971. In the year 1979, the tahsildar of Kolar Taluk passed an order directing respondent-3 to approach the assistant Commissioner, Kolar Sub-Division, for regrant of land so that the said respondent could retrieve the land from the alienees. The petitioner preferred a writ petition earlier before this Court in w. P. . No. 14256 of 1979 questioning the said order and the constitutional validity of the provisions of the Karnataka Village Offices abolition (Amendment) Act, 1978 ('the Act' for short ). Dismissing the writ petition, this court held that the contention of the petitioner on the validity of the Act was, not tenable and that there was nothing to interfere with the direction of the Tahsildar asking respondent-3 to approach the assistant Commissioner for regrant of the land and that such a direction would not affect the interest of the petitioner. Thereafter, the Tahsildar took steps to evict the petitioner from the land; but the petitioner pressed for regularisation of sale in her favour. The petitioner's request was rejected and an order of eviction was passed under Annexure-A. ( 4 ) IT is stated that the disputed land was thoti service inamti land and that the deceased father of respondents-3 and 4 had sought regrant of the land in accordance with law. In response, the Assistant commissioner, Kolar, passed an order of regrant on 12-7-1972 under Annexure-C. On the application. In response, the Assistant commissioner, Kolar, passed an order of regrant on 12-7-1972 under Annexure-C. On the application. filed by the father of respondents-3 and 4 and other inam holders, the said order of regrant dated 12-7-1972 was passed. However, the Assistant Commissioner did not regrant 7 acres 31 guntas in sy. No. 31 which included the disputed land of 1 acre 15 guntas. Whereas regrant was conceded in respect of Sy. No. 32, no definite order was passed one way or the other in regard to Sy. No. 31. ( 5 ) THE petitioner maintains that she is in lawful possession of the land and is aggrieved by the eviction order under Annexure-A. ( 6 ) THE point for consideration is whether the impugned orders Annexures 'a' and 'c deserve to be quashed for any illegality and whether a direction ought to be given to the authority for regrant of land in Sy. No. 31 in favour of the erstwhile inam holders and for regularisation of the sale of land in 'favour of the petitioner. ( 7 ) OBJECTIONS are filed'by respondent-3 to the effect that possession of the land was handed over to respondent-3 on 31-8- 1987 and continues to be so and that the petitioner has no right or interest in the land from which she has been evicted. But the fact that no regrant order was issued by the Assistant commissioner in regard to Sy. No. 31 is not disputed. But it is contended that the land is in possession and enjoyment of respondent-3. It is'strongly urged that the principle enunciated by this Court in Hanumaiah v state of Karnataka, ILR 1987 Kar. 550, is attracted to the facts of this case and further it is contended that there is no legal warrant and no justification for regularisation of the sale. The learned Government Advocate appearing on behalf of respondents-1, 2 and 5 contended that the impugned order of eviction was initiated under the provisions of section 7 (1) of the Act. It was submitted that, applying the provisions of Section 7 (3) of the Act, the petitioner is not entitled to the relief sought since the petitioner is only a purchaser who does not fall within the description of "holder" or "authorised holder". It was submitted that, applying the provisions of Section 7 (3) of the Act, the petitioner is not entitled to the relief sought since the petitioner is only a purchaser who does not fall within the description of "holder" or "authorised holder". Strong-reliance was placed by the learned Government Advocate on a recent ruling of a Division Bench of this Court (unreported) in Chikkanarasaiah v T hirupataiah and others, dated 22-3-1989 in Writ appeal No. 568 of 1985. According to the submission made by the learned Government advocate that even though the alienation might have taken place after the commencement of the principal Act and before 1978 when the Amendment Act came into force, since the regrant in the instant case was subsequent to 1978, there is a total ban on alienation of the land for a period of 15 years commencing from 1978 (the date on which the Amendment Act came into force) and, therefore, the benefit of regrant will not be available to the purchaser. It was also maintained by the learned Government advocate that the ratio of the decision in lakshmana Gowda v State, 1981 (1) Kar. L. J. Fage-1, did not go beyond the effect of the law on the subject. beyond 1978; but, on the other hand, the position of law was expounded only in so far as the right of a purchaser in respect of land purchased from the holder or the authorised holder when the sale transaction took place subsequent to the coming into force of the principal Act in 1961 and before the date of regrant if the regrant was made prior to 1978. It was pointed out that the latest decision on the subject rendered in Chikkanarasaiah's case dealt with the legal position after the incorporation of the Amendment to the Act in 1978 and the resultant legal position is that if the regrant was made subsequent to 1978, even though the alienation has taken place prior to 1978 and after the commencement of the principal Act, the purchaser is not entitled to that benefit of the regrant. It was urged by the learned Government Advocate that the impugned order of eviction fell within the ambit of Section 7 (1) of the Act. It was urged by the learned Government Advocate that the impugned order of eviction fell within the ambit of Section 7 (1) of the Act. ( 8 ) IT was submitted by the learned counsel for the petitioner that in the year 1972 on an application made by the original holders of land, an order came to be passed by the concerned revenue authority conceding regrant in respect of Sy. No. 32 with which we are not concerned. But without any order in regard to Sy. No. 31 with which we are concerned in this writ petition, the application was in relation to regrant of land in both the survey numbers though by different share holders of the family property. The only observation made by the concerned authority, namely, the Assistant commissioner in respect of Sy. No. 31 is that the lands in Sy. No. 31 seem to be encumbered. ( 9 ) ON 26-9-1987, an order was passed by the Tahsildar, Kolar Taluk, under annexure-Rl regranting 1 acre 15 guntas of land in Sy. No. 31 to Anjanappa son of selavadi Muniswamy, Gandhinagar, stated to be under Section 5 (1) of the Act subject to conditions which are incorporated in the said order. According to the learned Counsel for the petitioner, this order is, in essence, a continuation of the earlier order passed on 12-7-1972 wherein no decision had been taken by the concerned authority on the application for regrant in respect of Sy. No. 31 and, therefore, the order of regrant passed on 26-9-1987 ought to be construed as an order passed in 1972. In other words, the contention of the learned Counsel for the petitioner is that the proceedings commenced in 1972 came to an end with an order being passed on 26-9-1987 and till then it ought to be regarded as a pending proceeding which dealt with the rights of the applicant for regrant as existed prior to 1972. In other words, the contention of the learned Counsel for the petitioner is that the proceedings commenced in 1972 came to an end with an order being passed on 26-9-1987 and till then it ought to be regarded as a pending proceeding which dealt with the rights of the applicant for regrant as existed prior to 1972. ( 10 ) CONSIDERING the fact that notwithstanding a statement having been given by the petitioner before the Tahsildar even before the application for regrant was made, it is difficult for me to place reliance on it because it is an unmarked document bereft of probative value and I would prefer to accept the statement at the Bar made by the learned Counsel for the petitioner after making available to this Court for perusal the registered sale deed in respect of the land in question that it was prior to the alienation that an application had been filed for regrant of land as far back as 1969 as borne out from the material on record. Since the order which ultimately emerged on 26-9-1987 is in response to the application for regrant and also since in the body of the order passed on 26-9-1987 the authority has specifically mentioned twice that the order is passed under Section 5 (1) of the Act, it is difficult to presume the contrary and, therefore, it is to be inferred that there was an order of regrant under Section 5 (1) of the Act and bearing this in mind for the purpose of contextual relevance, it has to be held that the order of eviction was not initiated under section 7 (1) of the Act against the alienee. ( 11 ) PROCEEDING on the premise that there was an order of regrant under Section 5 (1) of the Act, the point for consideration is whether the principle enunciated by a division Bench of this Court in Writ Appeal no. 568 of 1985 would come in the way of the petitioner or whether the decision and the principle laid down in Lakshmana Gowda's case would come to the aid of the petitioner. 568 of 1985 would come in the way of the petitioner or whether the decision and the principle laid down in Lakshmana Gowda's case would come to the aid of the petitioner. ( 12 ) IT is necessary to make a reference to a point urged by the learned Government advocate to the effect that the relevance of the date of regrant was neither considered, nor decided, in Lakshmana Gowda's case and what was considered therein was only whether the alienation was made after the commencement of the principal Act and before the date of regrant which, according to the learned Government Advocate, referes to the date on which the Amendment act came into force in 1978. At the same time, it was argued by the learned Counsel for the petitioner that the amendment was only prospective in nature and would not affect an alienation made prior to the date of amendment. In other words, it was submitted that the amendment referred to the ban on alienation for a period of 15 years commencing from the date of amendment and also that when a regrant order is made, it takes effect from the date of commencement of the principal Act. ( 13 ) THE learned Counsel for respondent-3, more or less, adopted the line of argument taken by the learned Government Advocate and maintained that the impugned order of eviction fell within the ambit of Section 7 (1) of the Act and that there was no regrant order under Section 5 (1) of the Act though it is purported to have been passed under Section 5 (1) of the Act. In other words, the learned Counsel submitted that what is relevant is the substance and contents of the order and not the provision of law which it bears out. But when called upon to state categorically whether it was possible to produce a copy of the application for regrant and whether such an application was not made under Section 5 (1) at all, the learned Counsel was unable to do so. It may be fairly said that what was submitted by the learned Counsel was on the basis of the available records. It may be fairly said that what was submitted by the learned Counsel was on the basis of the available records. ( 14 ) PROCEEDINGS on the basis that the impugned action is a product of a regrant order made under Section 5 (1) of the Act, it is necessary to refer to the relevant portion of the decision in Lakshmana Gowda's case. Though it was sought to be made out by the learned Government Advocate that the facts in issue in Lakshmana Gowda's case do not refer at all to the question that has arisen for consideration in the instant case, it would be" more appropriate to say that the decision rendered in Lakshmana Gowda's case has a direct bearing on the point under consideration and it is also evident from the decision of a Division Bench of this Court in writ Appeal No. 568 of 1985 that extensive reference is made to various passages from the judgment in Lakshmana Gowda's case. ( 15 ) IN para 83 of Lakshmana Gowda's case, it is observed: "as pointed out by the learned advocate General, the presumption against retrospective operation of sub-section (4) of Section 5 of the principal Act so as to affect past transfers (transfers which had taken place prior to the coming into force of the Amendment act) and to impair existing rights and obligations, is rebutted by the express declaration in sub-section (2) of Section 3 of the Amendment Act to the effect that sub-section (4) shall be deemed always to have been inserted. It was contended by him that such declaration would have been wholly unnecessary if sub- section (4) was intended to apply only to subsequent transfers (transfers subsequent to 7-8-1978 with effect from which date sub-section (3) of Section 5 of the principal Act was amended ). If sub-section (4) of Section 5 of the principal Act is interpreted as affecting transfers made prior to 7-8-1978, of lands regranted under that section and Section 6, a question arises whether that sub-section is violative of Article 31 of the constitution. Invalidating transfer of a land and vesting such land in the State government, would, in substance, amount to compulsory acquisition of that land by the Government without paying any compensation to the transferor or the transferee of that land. Invalidating transfer of a land and vesting such land in the State government, would, in substance, amount to compulsory acquisition of that land by the Government without paying any compensation to the transferor or the transferee of that land. Cause (2) of article 31 of the Constitution provides, inter alia, that no immovable property shall be compulsorily acquired save by authority of law which provides for compensation for such acquisition, subject to the exceptions in sub-clauses (i) to (iii) of clause (5) (b) of that article. As the acquisition by the State Government of lands under sub- section (4) or Section 5 of the Principal Act, does not fall within any of the said exceptions, such acquisition without paying compensation, would, in our view, result in infringement of the right guaranteed by clause (2) of article 31 of the Constitution. Clause (a) of Article 31a (1) of the constitution, though undoubtedly saves a law providing for acquisition by the State of any estate or any right therein from any attack on the ground that such law is inconsistent with or takes away or abridges any of the rights conferred by articles 14,19 and 31 of the Constitution, the further proviso to Article 31a (1) declares that it shall not be lawful for the state to acquire any portion of a land held by a person under his personal cultivation and within the ceiling limit applicable to him unless the law relating to acquisition of that land provides for payment of compensation at a rate which shall not be less than the market value thereof. As sub-section (4) of Section 5 of the principal Act does not provide for payment of compensation for lands which would vest in the State Government on their transfer in contravention of subsection (3) of that section, sub-section (4) would become void if it affects transfers which had already taken place prior to the coming into force of that sub-section. But, it is a well accepted rule of construction of statutes that if a statutory provision is reasonably capable of two constructions, one which is consistent with the provisions of the Constitution and another, inconsistent therewith the former construction should be preferred to the latter, to save the constitutionality of that statutory provision. But, it is a well accepted rule of construction of statutes that if a statutory provision is reasonably capable of two constructions, one which is consistent with the provisions of the Constitution and another, inconsistent therewith the former construction should be preferred to the latter, to save the constitutionality of that statutory provision. In State of Karnataka v raghunatha Reddy, AIR 1978 SC 215 , 231, the Supreme Court held that to preserve the constitutionality of certain statutory provisions which had been impugned, a reading down of those provisions, on the well known principles of law established and noticed in several decisions, was permissible. In the light of the above principles of statutory construction, we hold that sub-section (4) of Section 5 of the principal Act should be construed as being applicable only to transfers made subsequent to 7-8-1978 and not to transfers which had taken place prior to that date and that sub-section (3) occurring in that section should be construed as having reference to amended sub- section (3) and not to original sub-section (3) of that Section. It is thus clear that what was decided in lakshmana Gowda's case in regard to the applicability of the amended provision of law that came into force on 7-8-1978 is that the amendment takes only prospective effect and does not affect alienations that had taken place anterior to the date of coming into force of the Amendment Act, 1978. ( 16 ) IN para 12 of the decision in chikkanarasaiah v Thirupataiah and others, writ Appeal No. 568 of 1985, decided on 22-3-1989, it was observed:"section 5 (3) stood amended with effect from 7-8-1978, thereby imposing a complete bar against alienation for a period of 15 years from the date of the amendment Act. Hence, while considering the principle stated in para-65 of lakshmana Gowda's case, it has to be examined whether, the doctrine of feeding the grant of estoppel can be extended, so as to override the bar imposed by the amended Section 5 (3)". In para 14 of the same judgment, it was held as follows:"in the year 1978, Principal Act was amended. Section 5 (3) as amended came into force with effect from 7-8-1978. Section 5 (4) as introduced by the amendment Act was read down in lakshmana Gowda's case as having only prospective operation from 7-8-1978. In para 14 of the same judgment, it was held as follows:"in the year 1978, Principal Act was amended. Section 5 (3) as amended came into force with effect from 7-8-1978. Section 5 (4) as introduced by the amendment Act was read down in lakshmana Gowda's case as having only prospective operation from 7-8-1978. Section 7 was substituted with effect from 24-12-1975 and a new Section 7a was introduced with effect from 7-8-1978. There is a total bar to alienate the granted lands for a period of 15 years from 7-8-1978 if the land is granted either under Section 5 or Section 6. If the land is granted under Section 7, it shall not be transferred similarly, as per Section 7a. Therefore, if a land is granted after the amendment Act became effective, the reading down of Section 5 (3) or Section 5 (4) in Lakshmana Gowda's case, would in no way benefit the transferees from the grantees. The grant is subject to the restrictions and these specific statutory restrictions cannot be overridden by an equitable doctrine of estoppel, or by applying Section 43 of the Transfer of property Act. "again in para 16 of the decision it is observed:"in the case before us also, sale in favour of the unauthorised holder was after the Act came into force i. e. , in march 1971, and the grant in favour of the office holder was in the year 1983 under the amended Section 7. Consequently, it has to be held that the Writ Petitioner was not entitled to invoke the decision in lakshmana Gowda's case and his writ petition was liable to be dismissed," ( 17 ) IT may also be observed after a careful examination of the judgment in Writ Appeal no. 568 of 1985 that the Court was concerned with a case in which the regrant was one that was made subsequent to 1978 under Section 7 of the Act and not under Section 5 or section 6 of the Act. This is one of the important distinguishing features that has to be borne in mind while dealing with the case on hand particularly In view of the fact that I have already drawn the inference that the impugned order in the instant case and the order of regrant were made under Section 5 (1) of the Act only. This is one of the important distinguishing features that has to be borne in mind while dealing with the case on hand particularly In view of the fact that I have already drawn the inference that the impugned order in the instant case and the order of regrant were made under Section 5 (1) of the Act only. ( 18 ) THE decision relied upon by the learned Government Advocate is not applicable to the facts of the case. Though the statement of the petitioner before the Tahsildar, as stated by the tahsildar, is that the lands were alienated, prior to the application for regrant, the registered sale deed produced before me by the learned Counsel for the petitioner is to the contrary and, according to it, the sale was made in 1971 whereas the application for regrant was made in 1969. The mahazar for having taken over possession of the land as drawn up by the tahsildar bears material alterations in dates without either signature or initials and it will not be unreasonable to presume that the dates so altered are not genuine and it is not safe to rely on those altered dates and the credibility of the mahazar itself is questionable. In the order of the assistant Commissioner passed on 12-7-1972, there is no order regarding sy. No31, but the order of regrant was only in respect of Sy. No. 32 and, therefore, the presumption ought to be that the application for regrant of land in Sy. No. 31 was kept pending and it is only on 26-9-1987 that an order was passed in respect of the said survey number relating to the alienation made in 1971 and to the application for regrant filed in 1969. The regrant order passed on 26-9-1987 unequivocally and specifically mentions that it was passed under Section 5 (1) of the Act. There is nothing in the substance and contents of the said order to presume the contrary and there is no scope for the presumption that the said order was passed under Section 7 (1) or Section 7 (3) of the Act. The order is passed by a competent authority and the authority is the best person to name the provision of law under which he is passing the order. To attribute a different provision of law than what is specifically indicated in the order, would not be proper. The order is passed by a competent authority and the authority is the best person to name the provision of law under which he is passing the order. To attribute a different provision of law than what is specifically indicated in the order, would not be proper. ( 19 ) THE petitioner being a purchaser from the regrantee though the regrant was subsequent to the alienation, is entitled to the benefit flowing from the regrant since the alienation. took place after the commencement of the Principal Act in 1961 and before the amendment in 1978 came into force and also before the regrant was ordered on 26-9-1987 in relation to an application filed in 1969. ( 20 ) OBVIOUSLY and clearly the decision in writ Appeal No. 568 of 1985 deals with an entirely different situation and fact pattern and pertains to the position of law regarding an order passed on an eviction proceeding initiated under Section 7 (1) of the Act. ( 21 ) A precedent can be applied only if the material facts and the facts in issue are substantially the same. In my opinion, after a careful analysis of the facts and issues involved in the judgment in Writ Appeal no. 568 of 1985 I am convinced that there is no force in the contention that the ratio of the said decision is applicable to the facts of this case. ( 22 ) IN the result, for the reasons stated above, rule is issued and made absolute. The writ Petition is allowed. The impugned orders Annexures 'a and C are quashed. Respondent-2 Tahsildar is directed to regularise the sale of land in Sy. No. 31 in favour of the petitioner. In the circumstances of the case, there will be no order as to costs. --- *** --- .