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2016 DIGILAW 12 (KAR)

B. M. Upendra Kumar v. State of Karnataka

2016-01-05

ANAND BYRAREDDY

body2016
ORDER : Anand Byrareddy, J. 1. Heard the learned Senior Advocate Shri Udaya Holla appearing for the learned counsel for the petitioner and the learned Government Advocate. 2. The learned Senior Advocate would submit that the matter is squarely covered by a division bench judgment of this court insofar as the interpretation of the scope and effect of the amendment brought about to the Karnataka Land Reforms Act, 1961 (Hereinafter referred to as the 'KLR Act, for brevity), whereby the ceiling limit on the income of a non-agriculturist to purchase agricultural land from non-agricultural source of income has been raised from Rs. 2.00 lakh to Rs. 25.00 lakh. Therefore, the learned Senior Advocate would submit that in the light of the judgment in Vijayakumar Shankarayya Sardar v. State of Karnataka, 1993(3) KLJ 411 (DB), whereby a division bench of this court was interpreting the very similar amendment and it has been held to apply with retrospective effect and therefore, the petitioner would fall out of the mischief of Sections79A of KLR Act. 3. The learned Government Advocate, on the other hand, would submit that the matter being disposed of summarily would lead to serious implications and since the constitutional validity of the amendment to sections 79A and 79B of the KLR Act is under challenge, it would be necessary to file a detailed statement of objections and it would even require the Advocate General to address this court and hence seeks a short adjournment, to enable the State to file its statement of objections and argue the matter. Since the petition is of the year 2009 and since the State has remained oblivious to the pendency of this petition, a request is made at this stage to file statement of objections and to contest the matter. 4. The learned Senior Advocate Shri Holla would submit that since the petition can be disposed of on a short ground as to the effect of the amendment act, there is no need for the petitioner to pursue the challenge insofar as the constitutional validity is concerned. Hence, this petition is taken up for summary consideration. It is the case of the petitioner that his family had purchased agricultural land bearing Survey Nos. Hence, this petition is taken up for summary consideration. It is the case of the petitioner that his family had purchased agricultural land bearing Survey Nos. 13, 13/1 and 14 of Byalalu village, Tavarekere Hobli, Bangalore South Taluk totally measuring about 17 acres 10 guntas under a registered sale deed dated 18.3.2005 in the name of the petitioner. Subsequent to the purchase, the khata was transferred in the name of the petitioner. The record of rights pertaining to the property was reflected in the name of the petitioner as the owner and cultivator. The petitioner thereafter is said to have approached M/s. Karnataka Bank Limited seeking a loan to carry on agricultural and horticultural development on the land in question. A loan of Rs. 35.00 lakh was granted and released in favour of the petitioner and the same was utilized for the development of the land. The petitioner had constructed a farm house, a temple apart from quarters for the labour. The petitioner had also dug a bore well and carried out extensive improvement on the land. The petitioner had approached the Assistant Commissioner of the jurisdiction to ascertain whether there were any proceedings initiated under Section 79A and 79B of the KLR Act, in respect of the land in question. This measure had been taken by the petitioner by way of abundant caution in view of the extensive monies having been invested in the agricultural operations. It then transpires that after lapse of 2 years and 3 months, the Assistant Commissioner, Bangalore South Sub-Division, the second respondent, had issued a notice calling upon the petitioner to appear before him, to show cause as to why proceedings should not be initiated under Section 83 of the KLR Act for having acted in violation of Sections 79A and80 of the KLR Act. The petitioner filed objections to state that he and his family were indeed agriculturists and the petitioner's property had been purchased by the joint family and the joint family did not have any income in excess of Rs. 2.00 lakh per year. The Assistant Commissioner having heard the petitioner and his counsel, could not pass orders as he was transferred. Subsequently, his successor in office, without hearing the petitioner and without affording an opportunity of hearing, had passed an order dated 26.6.2009 holding that the purchase of the lands by the petitioner was in violation of the said provisions. The Assistant Commissioner having heard the petitioner and his counsel, could not pass orders as he was transferred. Subsequently, his successor in office, without hearing the petitioner and without affording an opportunity of hearing, had passed an order dated 26.6.2009 holding that the purchase of the lands by the petitioner was in violation of the said provisions. Therefore, the Tahsildar, Bangalore South Taluk was directed to forfeit the lands in favour of the government. The petitioner had then challenged that order by way of an appeal before the Karnataka Appellate Tribunal in Appeal No. 640/2009 and the Tribunal by its order dated 3.11.2009 has dismissed the appeal. Therefore, the petitioner is before this court. 5. The learned Senior Advocate would now submit that though the petition was filed in the year 2009, during the pendency of this petition, the Legislature has thought it fit to amend Section 79A by substituting the words "two lakhs" found in Section 79A with the words "twenty five lakhs" with effect from 13.8.2015. 6. The question that would arise for consideration, according to the learned Senior Advocate, is whether the amendment now brought about as on 13.8.2015 can be applied to the facts of the present case as if it existed right from inception. 7. This was exactly the point that arose for consideration in a decision of a division bench of this court in Vijayakumar Shankarayya, supra. The division bench after referring to the case law and the statutory constructions by learned authors, has held thus:- "Whenever an amended Act has to be applied subsequent to the date of amendment the various unamended provisions of the Act have to be read along with the amended provision "as though they are the part of it." The amended part of the provision having got incorporated into the Act the provision of Section 79A of the Act as such should be read. Section 79A of the Act has the opening words "on and from the commencement of the amended Act." The amended act, as stated earlier, is defined to be Act 1/1974, which came into effect from 1.3.1974. From that date no one can acquire an agricultural land if his income from sources other than agricultural lands is in excess of Rs. 50,000/-. From that date no one can acquire an agricultural land if his income from sources other than agricultural lands is in excess of Rs. 50,000/-. If the interpretation given in Gayathri Ramaswamy v. State of Karnataka and others, WP 16976/1986 decided on 20.12.1991 is to be adopted, then it gives rise to two sets of transactions:- (1) those by which from the commencement of the amendment Act, i.e., from 1.3.1974, acquired lands prior to 5.2.1991, and (2) those by which acquired lands subsequent to 5.2.1991." This was in the context of the very section having been amended to increase the ceiling limit from Rs. 12,000/- to Rs. 50,000/-. Therefore, the division bench held that if the section is read as it is subsequent to amendment, it does not give scope for such construction at all. If the amended provisions were to be effective from 5.2.1991, then the expression "on and from the date of commencement of the amended act, that is 1.3.1974, would have no meaning at all. The legislature noticing that the section itself has provided as to in respect of what transactions the restriction is applicable which are entered into from a particular date, there was no necessity to make the same retrospective at all. The division bench, therefore, held that it could not attribute either ignorance to the legislature of the opening words of section 79A of the Act or treat the same as surplusage. Section simply states "from the date of the commencement of the amended act, which is 1.3.1974", those having annual income in excess of Rs. 50,000/- from non-agricultural sources, cannot acquire agricultural lands. It is not a case where the legislature classifies transactions depending upon a particular date. On the other hand, the legislature gives rise to certain consequences that would follow if a transaction takes place after a particular date. It is only a restriction in relation to a transaction. If that is so, there is no scope for interpretation that there can be two classes of transactions. As the provision stands, the date of the commencement of the entire provision is 1.3.1974 and none other. In this view of the law, the division bench disagreed with the view expressed in Gayathri Ramaswamy's case, supra. If that is so, there is no scope for interpretation that there can be two classes of transactions. As the provision stands, the date of the commencement of the entire provision is 1.3.1974 and none other. In this view of the law, the division bench disagreed with the view expressed in Gayathri Ramaswamy's case, supra. It was held that section 79A of the KLR Act is only by reference to the entire provisions of the section as amended by Act No. 1/1991 and it must be held that the said words "Rs. 50,000/-" as always being there in the enactment because the language of the section permits no other construction. This view would have to be reiterated only that the present transaction cannot be treated as a third set of transaction having entered into after 5.2.1991 and therefore the decision of the division bench would squarely apply. Consequently, since the income of the petitioner did not exceed Rs. 22,63,298.40 per year, the purchase of the land in question is valid and the proceedings initiated against the petitioner would fail. Accordingly, the petitions are allowed. The impugned annexure is quashed.