Karnataka High Court
Chikkanarasaiah vs Tirupataiah on 22 March, 1989
Equivalent citations: ILR1989KAR1520
JUDGMENT Shivashankar Bhat, J.
1. This Writ Appeal is by the first respondent In the Writ Petition. In the Writ Petition, the petitioner has challenged the order of the Tahsildar dated 10-6-1983 (Annexure-A) ordering his eviction from the land in question, and granting the land to the appellant herein. Annexure-A filed, contains earlier orders dated 15-12-1980 and 16-3-1981 declaring the sale in favour of the Writ Petitioner as void and a direction to evict him from the land in question.
2. According to the Writ Petitioner, he purchased the land in question on 18-3-1971. He contended that he was entitled to the land, since his vendor was held as entitled to the grant of the land under the provisions of the Karnataka Village Offices Abolition Act, 1961 (hereinafter referred to as 'the Act'). Therefore, the petitioner challenged the order of the Tahsildar dated 10-6-1983 referred to above.
3. The appellant contended in the statement of objections that the Writ Petitioner had been evicted earlier and only thereafter the land was granted to him under Section 7 of the Act.
4. The learned single Judge allowed the Writ Petition relying upon the decision of a Division Bench of this Court in LAKSHMANA GOWDA v. STATE OF KARNATAKA ILR (Karnataka) 1980(2) 892. It was observed by the learned single Judge that according to the ratio of the decision in Lakshmana Gowda's case, a person who has purchased the property after the coming into force of the Principal Act, gets title to the property, if subsequently the land is regranted to the alienor under the provisions of the Act. It was held that the alienor got the re-grant in his favour on 10-6-1983; the alleged dispossession of the alienee (Writ Petitioner) on an erroneous assumption that he was an unauthorised occupant cannot defeat his right, to be treated as title holder; hence the learned single Judge held that the alienee cannot be treated as an unauthorised occupant and be evicted under the provisions of Section 7 of the Act.
5. It was contended before us on behalf of the appellant that, the subsequent decision of a Division Bench of this Court in HANUMAIAH v. STATE OF KARNATAKA , fully supported his claim for re-grant under Section 7 of the Act, as substituted in the year 1978, and the unauthorised alienation In favour of the Writ Petitioner would not be legalised by the application of the doctrine of feeding the estoppel or that of Section 43 of the Transfer of Property Act.
6. We find considerable force in this contention.
The Principal Act came into force with effect from 1-2-1963. It was amended in the year 1978. The Act abolished the hereditary Village Offices. It is a historical fact that In several cases, Government lands were attached to these offices and they were meant, essentially, as part of the remuneration payable to the holder of the respective village office. They were inalienable, except with the permission and subject to the conditions, in force, at the relevant time.
7. When these hereditary offices were abolished, provision had to be made in respect of the lands attached to them. Normally, the lands should revert back to the Government since, the purpose for which these lands were attached to the abolished offices did not survive. Hence Section 4(3) provided for the statutory resumption of the lands by the Government. However, legislature thought it fit to grant the respective lands to the erstwhile office holders and others under certain conditions, as stated in Sections 5, 6 and 7 of the Act. While Section 4(3) declares that all such lands "shall be and is hereby resumed", the provisions of Sections 5, 6 & 7 do not vest those lands thereafter, automatically in the persons referred to in those sections. The device created by the legislature is to 'grant' the respective lands, in the manner provided under Sections 5, 6 & 7. Therefore, the persons who obtained the lands under Sections 5 6 or 7, do not get those lands immediately on resumption of the lands by the Government under Section 4(3). The legislative technique is to vest the lands in the Government and then provide for those lands to be granted, under Sections 6, 7 or 5, thus, emphasising the importance of the nature of the title of the Government as well as the grantee. The person who gets the land under Section 7, 6 or 5, is only a 'grantee' from the Government.
8. Resumption of the land under Section 4(3) is subject to the provisions of Section 5, 6 or 7. These three Sections (5, 6 or 7) provide for re-grant of the land resumed. Though Section 5 appears earlier to Sections 6 and 7, its application depends upon the non-application of Sections 6 and 7; that is to say, grant of land under Section 5 is only "in cases not falling under Sections 6 and 7."
9. Section 6 is attracted If the resumed land "is held by an authorised holder." In such a situation, the land is to be regranted to him on payment of the amount stated in Section 6 and subject to the condition and consequences mentioned in Section 5. The phrase "authorised holder" is defined under Section 2(1)(b); it reads,-
"Authorised holder" means a person in whose favour a land granted or continued in respect of, or annexed to, a village office by the State or a part thereof has been validly alienated permanently, whether by sale, gift, partition or otherwise, under the existing law relating to such village offices."
Therefore, if a land (or any part of the land) attached to a village office (i.e., granted or annexed to a village office) has been validly alienated under the existing law - the term 'existing law' is defined under Clause (f) - the person in whose favour such alienation had taken place is the 'authorised holder'. Thus, Section 6 governs the case of a valid alienation of the land prior to the coming into force of the Act (1-2-1963), when the said alienee continues to hold the land.
10. Section 7(1) governs the situation where the resumed land 'is in the possession of an unauthorised holder'. If the land is in the possession of an 'unauthorised holder' - [a term defined under Clause (m) of Section 2(1)] - Section 7(1) is attracted. Other cases are to be governed by Section 5. Thus, if the office holder had validly alienated the land prior to 1-2-1963, and the land is held by the said alienee, Section 6 applies to the fact-situation. If land is in possession of an unauthorised holder, i.e., a person, to whom there was an illegal alienation, Section 7(1) is attracted. The case of the office holder himself being in possession is covered by Section 5 and he gets the grant of the land under Section 5, subject to the conditions stated therein.
11. The Act covers three different situations under Sections 5, 6 and 7. The cases Involving the claimsof an office holder or of a valid alienee coming under Section 5 and Section 6 respectively as against the claim of an unauthorised holder has to be examined in the manner provided by the statute, because these claims could arise only by virtue of the resumption of lands by the Government and the provisions governing the re-grant thereafter.
Questions 2 and 3 posed in Lakshmana Gowda's case were:
(ii) "Did the holder or the authorised holder of a Service Inam Land get title to it when that land stood resumed to the Government under Sub-section (3) of Section 4 of the Principal Act or did he get such title to that land only when it was regranted to him under Section 5 or 6, as the case may be, of the Principal Act?"
(iii) "Did an alienee of a Service Inam Land from its holder or the authorised holder, acquire title to such land, if the alienation had taken place between the date of the coming into force of the Principal Act and the date of the regrant, after its regrant to its holder or the authorised holder under Section 5 or 6, as the case may be, of the Principal Act?"
These were answered at page 913. On question (ii) the answer is found at para 64 thus:
"Hence, our answer to the question is that the holder or the authorised holder of a Service Inam Land did not get title to it when that land stood resumed to the Government under Sub-section (3) of Section 4 of the Principal Act, but he got title to it only when it was regranted to him under Section 5 or 6, as the case may be, of the Principal Act."
Thereafter, the doctrine of feeding the grant by estoppel and Section 43 of the Transfer of Property Act were applied to hold that the alienees obtained valid title to the granted lands, in answer to question No. (iii), at para 65:
"We have already held that though the holder or the authorised holder of a Service Inam Land got title to such land only when it was actually regranted to him under Section 5 or 6 of the Principal Act, such title related back to the date of corning into force of that Act, From this, it, would follow that if he purported to alienate such land before it was regranted to him, but after the Principal Act came into force, the doctrine of feeding the grant by estoppel embodied in Section 43 of the Transfer of Property Act, would apply and the title he subsequently acquired on such regrant of that land, would enure to the benefit of his alienee who would get a good title to such land after such regrant to his alienor. There is also no good reason why the benefit of Section 43 should be denied to such an alienee when the Principal Act did not prohibit the holder or the authorised holder of a Service Inam Land from transferring his interest or right therein after it was resumed and before it was regranted to him."
These observations were sought to be relied, to contend that even if the lands were regranted after the coming into force of the provisions as amended by the Amendment Act of 1978, said grants enured to the benefit of prior alienees from the grantees. The implication of the Writ Petitioner's contention is that the grant made subsequently in favour of his alienor enured to his benefit to confer title on him, even though, the grant was after the relevant provisions were amended.
12. 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 by estoppel can be extended, so as to override the bar imposed by the amended Section 5(3).
When a person purports to transfer a property without title, the transferee gets title only when the alienor acquires a valid title; in such a case, the moment the alienor gets a good title, the estate would pass on to the transferee by the application of the doctrine of feeding the estoppel. But here, that is not possible because at the very instant of the grant, the bar against alienation Imposed by the statute operates.
13. Para-65 in Lakshmana Gowda's case has to be read with paras 76 and 77 of the said decision. The debated question in paras 76 and 77 was -
"Original Sub-section 3 of Section 5 of the Principal Act provided, inter alia, that a Service Inam Land regranted under Sub-section (1) of that Section, was not transferable without the previous sanction of the Deputy Commissioner and that such sanction should be granted only on payment of an amount equal to 15 times the amount of full assessment of the land, The position was the same in regard to lands regranted under Section 6 of the Principal Act. As to what is the consequence of transfer of a land regranted under Section 5 or 6 of the Principal Act without obtaining the previous sanction of the Deputy Commissioner, was the subject of considerable debate."
The answer is found at para-77:
"....Once village offices were abolished, lands attached thereto ceased to be emoluments of such offices. No public policy was involved, in our opinion, in prohibiting transfer of such lands after abolition of village offices. Under original Sub-section (3) of Section 5 of the Principal Act, the Deputy Commissioner had no option but to grant such previous sanction to the regrantee of a land under Section 5 or 6 of that Act, if he had paid an amount equal to 15 times the full assessment of that land. The provisions in Sections 5, 6 and 7 of that Act envisaged conferment of title to Service Inam Lands upon regrantees, i.e., holders at concessional prices if they wanted to retain those lands for themselves without the right to alienate them and at higher prices if such regrantees desired to have those lands together with the right to alienate them. Thus, in imposing a restriction on alienation of lands by the grantees under the said provisions, the Legislature did not intend to prohibit totally regrantees from alienating the regranted lands. The only object of subsection (3) of Section 5 of that Act, which was made applicable to subsequent alienations by all types of regrantees, was to collect higher prices for the lands regranted if the regrantees wanted to have the right of alienating such lands. Hence, the omission to obtain the previous sanction of the Deputy Commissioner under original Sub-section (3) of Section 5 of the Principal Act did not, in our opinion, render void a transfer of a land regranted under Section 5, or 6 or 7 of the Principal Act prior to 7-8-1978, but such transfer can be regularised by paying to the Government an amount equal to 15 times of full assessment of that land."
This reasoning does not apply to construe the effect of the amended Section 5(3). Hence we proceed to decide the question raised in this appeal, by reference to the amended provisions of the Act.
An aspect of the question, has to be noted here. The Government Grants Act 1895 and the implicability of the provisions of Transfer of Property Act to the grants or transfers made by the Government are relevant. The application of principle of 'feeding the estoppel' and that of Section 43 of the Transfer of Property Act, would be inconsistent with the provisions of Section 7 of the Act; a new mode of conferring title to the land on an unauthorised holder not provided by the Act will be contrary to the scheme of the Act.
The "previous sanction" of Deputy Commissioner, required for an alienation under the original Section 5(3) was, in effect, read down in Lakshmana Gowda's case so as to alter the mandate of the said provision by holding that the Deputy Commissioner had no option but to grant permission for the alienation. Thus, the rigour in the plain meaning of the words requiring "previous sanction", as a condition precedent for the validity of the transaction, was diluted at para 77 of the decision.
14. 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 7-8-1973. 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.
15. The decision in Hanumaiah's case is also of a Division Bench and has referred to Lakshmana Gowda's case. In Hanumaiah's case, the unauthorised holders were holding the lands by virtue of the sales in their favour, made in the year 1968, 1969 and 1970 i.e., after the Principal Act came into force; thus, they were not in possession of the resumed lands as on 1-2-1963, the date of resumption, when the Act came into force. They were ordered to be evicted and the lands were granted to the office-holders under Section 7 of the Act, by an order dated 17-4-1982. It was concluded, at para-8, (at page 561):
"In this view of the matter, it seems to us that the impugned order, which is made under the amended Section 7 of the Act long after its coining into force, does not enure to the benefit of the petitioners and they do not get any title to the lands. The regrant order made under amended Section 7 of the Act does not stand on the same footing as that of a regrant made under Section 5 or 6 of the Act."
16. 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 1 and his Writ Petition was liable to be dismissed.
17. In the result, for the reasons stated above, this appeal is allowed, the order of the learned single Judge is reversed and the Writ Petition filed by the first respondent is dismissed. Rule is discharged. In the circumstances, there will be no order as to costs.