Karnataka High Court
Gopalappa vs Secretary To Government Of Karnataka on 10 October, 1990
Equivalent citations: ILR1991KAR42, 1990(3)KARLJ351
ORDER Rama Jois, J.
1. A common question of law namely as to whether the petitioner acquired any right pursuant to an agreement of sale executed by the erstwhile holders of Village Offices in respect of an erstwhile service inam land in favour of each of the petitioners after the land stood vested in the State under the provisions of the Karnataka Village Offices Abolition Act 1963 arises for consideration in these Writ Petitions.
2. The facts of the cases are these: The contesting respondents in each of these petitions were holders of inferior Village Offices under the Mysore Village Offices Act, 1908. Certain service inam lands were attached as emoluments to the concerned village offices. The Mysore Village Offices Act 1908 was repealed by the Karnataka Village Offices Abolition Act, 1961. Section 4 of the Act abolished all the hereditary village offices and also extinguished all the emoluments attached thereto. The Act was given effect to with effect from 1-2-1963. Notwithstanding the abolition of the village offices and the extinguishment of the emoluments attached thereto which included service inam lands, Section 5 of the Act provided for the regrant of the land resumed to the Government under Section 4 of the Act, to the holders of erstwhile village offices. In terms of Section 5 of the Act, the contesting respondents in each of these cases applied for regrant of the lands in their favour. But even as those applications were pending agreements were entered into by each of them in favour of each of the concerned petitioner, agreeing to sell the erstwhile service inam lands the particulars of which are as follow:-
(1) In W.P. No. 958/1988:- An agreement between respondents 3 to 11 and the petitioner was entered into on 20-4-1967 for the sale of lands in Sy. Nos. 118 and 32 of Haleharamakanahalli village, Masthi Hobli, Kolar District, which were Thoti service inam lands, the extent being 12 guntas of Bagayat and 2 acres and 18 guntas of Kushki. There was also another agreement dated 9-10-1967. Copies of the agreements are produced as Annexures 'A' and 'B'. Pursuant to the agreement, possession of the lands were handed over to the petitioner in the year 1967 itself and since then he is in possession of the lands.
(2) In W.P. No. 12557/1987:- In this case, an agreement was entered into between respondent 2 in favour of the petitioner on 12-8-1968 for the sale of 5 1/4 guntas of land in Sy. No. 86 of Chikkayiggalur village, Lakkur Hobli, Malur Taluk, (Annexure-A). There was also another agreement on 3-9-1968 for the sale of the share of respondents 4 and 5 in Sy. No. 86 of the same village. There was a third agreement on 12-8-1968 for the sale of the share of respondent No. 6. According to the petitioner, he was put in possession of the property and he has been in possession of the land.
(3) In W.P. No. 12558/1987:- The petitioner in this petition entered into an agreement on 7-10-1968 with respondents 2 and 3 agreeing to purchase 1 acre and 3 guntas of land in Sy. No. 126 of Hindurnangala village, Lakkur Hobli, Malur Taluk, for a valuable consideration. The said land was also an erstwhile service inam land and agreement was registered on 9-10-1968 before the Sub-Registrar, Malur. According to the petitioner, he was put in possession of the land on the date of agreement.
(4) In W.P. No. 12559/1987:- The petitioner in this case entered into an agreement on 12-8-1968 with the 2nd respondent for the purchase of 4 1/2 guntas of erstwhile service inam land in Sy. No. 86 of Chikkayiggalur village, Lakkur Hobli, Malur Taluk. Pursuant to the agreement, according to the petitioner, he was put in possession and he had been in possession of the land since then.
(5) In W.P. No. 12560/1987:- The petitioner in this case entered into an agreement with respondents 2 and 3 on 28-9-1968 (Annexure-A) for the purchase of 1 acre 3 guntas of land in Sy. No. 126 of Hindumangala village, Lakkur Hobli, Malur Taluk, which was also an erstwhile service inam land. The agreement was registered on 30-10-1968 in the office of the Sub-Registrar, Malur. According to the petitioner, on the very date of agreement, petitioner was put in possession and he has been in possession of the property right from the said date.
3. After the above agreements and after the petitioners were put in possession, an amendment was introduced into the Karnataka Village Offices Abolition Act, 1961, by Act No. 13 of 1978. Sub-section (6) introduced into Section 5 and Section 7A of the Act are relevant for this case. They read -
Notwithstanding anything contained in any law for the time being in force, any agreement for transfer of land resumed under Clause (3) of Section 4, entered into prior to regrant thereof under Sub-section (1), shall be null and void and any person in possession thereof in furtherance of such agreement shall be summarily evicted, therefrom by the Deputy Commissioner.
Section 7A: Restriction on Transfer etc. (1) No person shall transfer or acquire by transfer for a period of fifteen years from the date Of commencement of this Section any land disposed or regranted under Sub-section (4) of Section 5 or Sub-section (3) of Section 7 and any transfer of such land in contravention thereof shall be null and void. The land so transferred shall vest in the State Government free from all encumbrances. The provisions of Sub-section (5) of Section 5 shall mutatis mutandis apply to transfer of such land.
(2) Any person who acquires by transfer such land in contravention of Sub-section (1) shall on conviction be punished with imprisonment which may extend to six months."
As can be seen from Sub-section (6), every agreement for transfer of any land resumed under Clause (3) of Section 4 entered into prior to the regrant thereof, under Sub-section (1) of Section 5 is declared, null and void and any person who is in possession of such land in furtherance of such agreement is liable to be evicted summarily by the Deputy Commissioner. Sub-section (1) of Section 7 also provides that if a land resumed under Sub-section (3) of Section 4 is found to be in possession of an unauthorised holder such person is liable to be evicted from the land summarily. Sub-section 3A of Section 7 provides that after such eviction of an unauthorised holder from the lands, if it was a land which had been granted in respect of an erstwhile inferior village office, it should be regranted/restored to the holder of such village office. Section 7A imposes a prohibition on transfer of regranted lands under Sub-section (4) of Section 5 or Sub-section (3) of Section 7 and further declares that any transfer of such land in contravention of Section 7A shall be null and void and it further provides that the land shall vest from all encumbrances in the Government. Sub-section (2) of Section 7A also makes a transfer of land in contravention of Section 7 in Section 7A as a punishable offence.
4. The facts stated in respect of each of the petitions, at paragraph-2 of this Order are not in dispute. The lands concerned in all these petitions were service inam lands. They were resumed in favour of the State Government under Sub-section (3) of Section 4. An agreement in each of these cases was entered into after the Act came into force and after the lands stood resumed In favour of the Government under Clause (3) of Section 4. Such agreements were also prior to regrant. As stated in the petitions, the regrant of the land concerned in W.P. No. 958/1988 was made on 30-12-1987 and the regrant of lands concerned in the other 4 Writ Petitions was made on 27th June 1986. Therefore, on the language of Sub-section (6) of Section 5 the agreements entered into between the petitioners and the erstwhile holders of village office became null and void by the force of Section 5(6) and the petitioners became liable to be evicted summarily. Accordingly action was taken against each of the petitioner for his eviction from the land which was the subject-matter of agreement for purchase, the reason being that the agreements entered into in their favour had become null and void, in view of the clear language of Sub-section (8) of Section 5 by giving notices of eviction to the petitioners from the lands in question. Questioning the legality of the notices of eviction, the petitioners presented the Writ Petitions.
5. Before the learned Judge before whom the Writ Petitions were posted, it was contended for the petitioners that in view of the Division Bench decision of this Court in LAKSHMANA GOWDA v. STATE OF KARNATAKA AND ORS., ILR (Kar) 1980(2) 892, 1981(1) KLJ 1 they could not be evicted. Reliance was placed on paragraph 108, (iv) of the Judgment, The relevant paragraph of the Judgment reads:-
"(iv) The alienee, who had entered into an agreement for purchasing a Service Inam Land and was put in possession thereof in pursuance of such agreement prior to the coming into force of the Principal Act, did not, under such agreement, get any right to continue in possession of such land by reason of the Principal Act coming into force. Even by his alienor subsequently obtaining regrant of such land under Section 5 or 6, as the case may be, of the Principal Act, the alienee got neither any title to such land nor the right to protect his possession of such land under Section 53A of the Transfer of Property Act. However, the State cannot evict such alienee or intending alienee, in possession of a Service Inam Land, if such land had been subsequently regranted to the holder or the authorised holder under Section 5 or 6 of the Principal Act."
As against this, it was contended for the contesting respondents and also by the Government Advocate that the above paragraph was of no assistance to the petitioners for the reason that the view expressed in the said paragraph related to agreements for the purchase of service inam lands prior to the date on which the Principal Act came into force and not in respect of lands which is expressly covered by Clause (6) of Section 5 which declares that any agreement entered into for the sale of lands resumed under Sub-section (3) of Section 4 of the Act prior to the date of regrant is null and void. Having regard to the importance of the matter, the I earned Judge has referred these petitions for consideration of Division Bench under Section 9 of the Karnataka High Court Act, 1961.
6. Sri G. Gangireddy, learned Counsel for the petitioner, contended that the agreements for the purpose of the lands in question were entered into by the petitioners long prior to the introduction of Sub-section (6) into Section 5 by the Karnataka Village Offices Abolition (Amendment) Act, 1978, and therefore the provisions of Sub-section (6) of Section 5 has no application to their cases. His alternative contention was that even on the basis that the said provision is attracted to these cases, orders of regrant in favour of the respondents could have been made only after the eviction of the petitioners from the lands in question, and instead of that, regrants have been made even as the petitioners are continuing in possession of the land and therefore regrants were invalid. He further submitted that the Division Bench in Lakshmana Gowda's case even after coming to the conclusion that an agreement of sale of service inam land, even if the intending purchaser was put in possession of the land before the Principal Act came into force, was in violation of the provisions of the Act, as then in force, and therefore illegal and that such a person could not invoke the provision of Section 53A of the Transfer of Property Act, proceeded to state that the State cannot evict the alienee in possession of service inam land if such land had been subsequently regranted to the holder or authorised holder under Section 6 of the Principal Act. The learned Counsel submitted on the same principle it should be held that though the agreements in favour of the petitioners have become null and void in view of Clause (6) of Section 5, the petitioners cannot be dispossessed of the lands by the State after the land is regranted to the persons entitled to regrant under Section 5 or under Section 6 of the case may be. In the present cases, the learned Counsel pointed out, that regrants of the lands in question have been made and therefore after the regrant, the State cannot dispossess the petitioners of the lands in question.
7. The clear distinguishing feature between the facts of the case and the facts considered by the Division Bench, in Lakshmana Gowda's case is that was a case to which Section 5(6) was not attracted, whereas it is attracted to this case. Therefore, we have to understand the meaning of Section 5(6) and give effect to it. The language of Sub-section 5(6) is clear and unambiguous. According to the said clause any agreement for transfer of land resumed under Clause (3) of Section 4 entered into prior to the regrant under Sub-section (1), is null and void and it does not stop there and it further provides that any person in possession of such land in furtherance of such agreement shall be summarily evicted therefrom by the Deputy Commissioner. In the present cases, there is no dispute that the lands in respect of which the petitioners entered into an agreement of sale were those Clause (3) of Section 4. There is also the agreements were entered into before the regrant under Section 5(1). Therefore, the agreements became null and void the moment Sub-section (6) was introduced into Section 5 and further the petitioner became liable to be summarily evicted from the lands in question. There is no provision in the Act which provides that there should be eviction first and regrant next. All that Sub-section (6) of Section 5 provides is, if the agreement had taken place after the resumption of the land under Clause (3) of Section 4 and before the regrant, the agreement is void. Therefore, the agreements in favour of petitioners became null and void and they became liable to be evicted summarily.
8. The learned Counsel for the petitioner has relied on Section 43 of the Transfer of Property Act which lays down the principle of feeding or estoppel by grant. In our opinion the principle contained in that Section has no application to the facts of this case. There would have been some force in the contention of the petitioner, if there was no prohibition for sale of the lands after regrant in favour of the concerned respondents, in which event, the petitioners could have contended that though on the date on which the agreements were entered into, they were hit by Sub-section (6) of Section 5, after the regrants were made, as the respondents were entitled to sell the land, the petitioner was entitled to retain the possession and it was for the grantees to file a suit for recovery of possession of the land from the petitioner in which event he could not only rely on Section 43 of the Transfer of Property Act but also on Section 53A of the Transfer of Property Act which incorporates the doctrine of part performance But in the present case the position is Sub-section (3) of Section 5 prohibits transfer of lands regranted under Section 5(1) for a period of 15 years from the date on which the 1978 (Amendment) Act came into force Sub-section (3) of Section 5 as amended reads -
"Section 5 Sub-section (3): The occupancy or the ryotwari patta of the land, as the case may be, re-granted under Sub-section (1) shall not be transferable otherwise than by partition among members of Hindu Joint Family [for a period of fifteen years from the date of commencement of Section 1 of the Karnataka Village Offices Abolition (Amendment) Act, 1978]."
Therefore, it is clear, not only that the agreement entered into by the petitioners became void by force of Section 5(6) of the Act, there was also prohibition for alienation of the land granted to the respondents under Section 5(1) of the Act for a period of 15 years from 7-8-1978, the date on which the 1978 Act came into force.
9. For the aforesaid reasons, we are of the view that, in view of Section 5(1) of the Act the petitioners in each of the cases has no manner of right to retain possession of the lands which according to them they have been in possession pursuant to the agreement of sale executed by the concerned respondents and that they are liable to be summarily evicted.
10. In the result, we make the following order:-
The Writ Petitions are dismissed, without any order as to costs.