Prakash K. Srivastava and Another vs The Tehsildar and Others

Mohan Shanthanagoudar, J.—The order at Annexure-X dated 26.10.2005 passed by the Tahsildar Bangalore North Taluk, the 1st respondent herein is assailed in this writ petition. By the impugned order, the 1st respondent has ordered to revert the land to an extent of 1 acre 15 guntas and 0.13 guntas respectively, situated in SyNo. 49/1 and 49/2 of Hebbalu village of Bangalore North Taluk to the legal representatives of original grantees, and ordered to restore katha in the joint names of the legal heirs of original grantees namely, Krishnappa S/o Late Chikkaiah, Munihanumappa S/o Late Chikkamuniswamy, Thimmaraju S/o. Late Thimmarayappa, Venkatamma W/o Late Ramaiah and Hanumakka W/o Late Kempaiah, on the ground that the said land has been alienated in contravention of Section 5(3) of the" Karnataka Village Offices Abolition Act, 1961 (hereinafter referred to as ''Act'' for short).

The brief facts leading to this writ petition are as under:

One Chikkamuniyappa was the Inamdar of the land bearing Survey No. 49 of Hebbalu village to an extent of 1 acre 34 guntas (including Karab portion of land). As the Inam land is attached to Thoti Office to which, said Chikkamuniyappa was inamdar, he filed an application u/s 5 of the'' 1961 Act'' for re-grant of the aforesaid land along with three other lands in the year 1972. The Assistant Commissioner, after considering the material on record has re-granted the said land along with other lands in favour Sri T. Chikkamuniyappa, holder of office by the order at Annexure-A dated 6.6.1973. The re-grantee namely Chikkamuniyappa, filed application along with one Thimmarayappa and Ors. on 13.6.1973 before the Assistant Commissioner Bangalore praying for permission to alienate the land in Sy.No. 49 measuring 1 acre 33 guntas and other lands u/s 5(3) of the then Mysore Village Offices Abolition Act, 1961. The Assistant Commissioner who was then delegated with powers, after considering the case on merits granted permission to the re-grantee Chikkamuniyappa to alienate the said land by passing the order vide Annexure-E, on the following conditions:

(1) That this permission is without prejudice to the tenancy rights if any in the land.

(2) That this land should be used for agricultural purposes only.

(3) That if he gives up agriculture within five years, the land shall vest in the State Government subject to payment to him of an amount equal to eight times the net annual income of the land or when the land has been purchased, the price paid for the land, if such price is less than eight times the net annual income of the land.

No other conditions are imposed except the aforesaid conditions in the order Annexure-E by which permission is granted to re-grantee to alienate the property in question. After obtaining permission to alienate the land, said Chikkamuniyappa along with several holders sold 1 acres 18 guntas out of total extent of 1 acre 33 guntas to Sri J.B. Vasudevan and K.M. Balachandran (Vendors of the petitioners herein) on 27.6.1973. The re-grantees further sold the remaining land to an extent of 0.16 guntas in Sy.No. 49 on the very date to the very same persons namely J.B. Vasudevan and K.M. Bala chandran. The sale deeds are produced at Annexure C and D respectively along with writ petition. It is relevant to note here itself that the re-grantees (Hakkudars) have remitted the occupancy price equal to 21 years assessment, as could be seen from the order passed by the Assistant Commissioner at Annexure-A. The said 21 times land revenue assessment includes 6 times the land revenue assessment for the purposes of getting re-grant u/s 5(1) of the Act and 15 times land revenue required to be deposited u/s 5(3) of the Act as it stood then for the purposes of getting permission to alienate the property. Thus it is clear from the records that said J.B. Vasudevan and K.M. Balachandran have purchased the land in question only after completion of all the formalities required u/s 5 of the Act.

Out o f the total extent of 1 acres 33 guntas, 0-16 guntas was got converted for industrial purpose by said J.B. Vasudevan and K.M. Balachandran as per the order dated 9.2.1976 vide Annexure-F. The said 0-16 guntas of land which was converted was sold by J.B. Vasudevan in favour of the 2nd petitioner herein (Sanjay K. Srivastav) an 17.12.1980 (Sale deed is at Annexure-G), and whereas the 1st petitioner (Prakash K. Srivastava) has purchased the remaining 1 acre 18 guntas of land from J.B. Vasudevan on 9.11.1981 (sale deed at Annexure-H). In the year 1984, the proceedings u/s 79-A and 80 of the Karnataka Land Reforms Act were initiated against the petitioners by the Assistant Commissioner on the ground that the petitioners are not agriculturists. The Assistant Commissioner, Bangalore, by his order dated 29.7.1994 (Annexure-J) ordered for forfeiting the land in question to the State Government by holding that these petitioners are not agriculturists and consequently, declared the sale deeds as null and void. Against the said order of forfeits c, the petitioners have preferred appeal before the Kamataka Appellate Tribunal, Bangalore in appeal No. 360/1994. The Appellate Tribunal, after considering the material on record set aside the order passed by the Assistant Commissioner and held that the petitioners are agriculturists and that their income from other source other that the agricultural income does not exceed Rs. 50,000/- per annum by its order dated 22.1.1996 vide Annexure-K. Thus, the proceedings relating to Section 79A and 80 of the Land Reforms Act ended in favour of the petitioners.

Thereafter, on 3.6.1996 petitioners filed application before the Town Planning Member attached to the office of the Bangalore Development Authority seeking permission for change of land use and the same was rejected on 4.4.1997 vide order at Annexure-M and subsequently, by another order produced at Annexure-R In the meantime, the Survey number of land in question was bifurcated into Sy.No. 49/1 (measuring 1 Acre 18 guntas) and 49/2 (16 guntas). Challenging the order of rejection for change of land use, the petitioners preferred writ petition No. 30016/2000 before this Court. This Court allowed the writ petition and set aside the orders passed by the Town Planning Authority and remanded the matter back to the Bangalore Development Authority for fresh consideration. After remand and on reconsideration, the BDA has allowed the application filed by the petitioners for change of land use and directed the petitioner to deposit a sum of Rs. 4,40,092/- plus Rs. 1,22,260/- towards betterment charges, by the orders dated 18.3.2004 and 4.10.2004 vide Annexures-S and U respectively. After remittance of said amount, the Government of Karnataka, by its order dated 21.2.2004 approved the order passed by the Bangalore Development Authority u/s 14(a) of the Karnataka Town and Country planning Act 1961 relating to change of land user. Subsequently, the BDA has issued confirmation letters dated 18.5.2004 and 23.2.2005 vide Annexures-V and W respectively, intimating the petitioners about the change of land use.

In the meanwhile, one Sri Chikka Muniga represented by his Power of Attorney holder Sri C. Laxminarayan and Sri C.R. Munireddy filed civil suit in O.S. 6506/1993 for permanent injunction in respect of the entire land Survey No. 49 against the petitioners, which came to be dismissed for default on 25.6.1996. In the year 1988, the 6th respondent herein, namely, Ravikumar filed a suit in O.S.No. 580/1998 challenging the two sale deeds dated 27.6.1973 executed by the grantees in favour of the vendors of the petitioners and subsequent sale deeds executed in favour of the petitioners and the said suit is pending adjudication before the Civil Court.

When the matter stood thus, the 3rd respondent herein namely, Munihanumappa filed an application before the 1st respondent Tahsildar for cancellation of the sale deeds executed by the original grantees in favour of K.M. Balachandran and J.G Vasudevan, the vendors of the petitioners. The 1st Respondent Tahsildar allowed the said application filed by the Respondent No. 3 herein by the impugned order dated 26.10.2005 on the ground that the petitioners have violated the provisions of Section 5(3) of the Act and directed that the lands in question shall be entered in the name of the respondent No. 3 and Ors. jointly. The aforesaid order dated 26.10.2005 at Annexure-X is challenged by the petitioners in this writ petition.

Sri G.S. Vishweswara, Learned Senior Counsel appearing on behalf of the petitioners vehemently contended that the 1st respondent-Tahsildar has totally misdirected himself while Commissioner of the conclusion inasmuch as, certain facts which are not on record , e taken into consideration and that the 1st respondent has proceeded on the ground that the sale deed in question are contrary tc tnc amended provision of Section 5(3) of the Act; that the 1st respondent has not at all taken into consideration the relevant records such as, the order dated 22.1.1996 passed by the Karnataka Appellate Tribunal in Appeal No. 360/1994 vide Annexure-K, the order dated 11.4.2002 passed by this Court in W.RNo. 30015-16/2000 vide Annexure-Q, the orders dated 18.3.2004, 18.5.2004 and 23.2.2005 passed by the Planning Authority vide Annexures-S, Annexure-V and W respectively and the order dated 21.2.2004 passed by the State Government vide Annexure-T, approving the change of land use; that the land was re-granted as back as on 6.6.1973 and the sale deeds are executed by the re-grantees after obtaining prior permission from the competent authority on 27.3.1973 and therefore, the provisions of the amended Act have no application to the facts of the present case and hence, the impugned order annulling the sale deeds and reverting the lands in favour of the legal representatives of the original grantees is liable to be quashed.

Per Contra Shri Jayakumar S. Patil and Shri Nanjunda Reddy, Senior Advocates appearing on behalf of contesting respondents argued in support of the impugned order.

The Karnataka Village Offices Abolition Act, 1961 was drastically amended in the year 1978 by Act No. 13 of 1978 with effect from 7.8.1978. The provisions of Section 5(3) of the Act read prior to and after amendment in 1978 as under:

________________________________________________________________ Before Amendment After Amendment __________________________________________________________________ 5(3) The occupancy or the 5(3) The occupancy or the ryotwari patta of the land, as ryotwari patta of the land, as the case may be, re-granted the case may be, re-granted under Sub-section (1) shall not under Sub-section (1) shall not be be transferable otherwise than transferable otherwise than by partition among members by partition among members of Hindu Joint Family without of Hindu Joint Family for a the previous sanction of the period of fifteen years from the Deputy Commissioner and date of commencement of such sanction shall be granted Section 1 of the Karnataka only on payment of an amount, Village Offices Abolition equal to fifteen times the amount (Amendment) Act, 1978. of full assessment of the land. _______________________________________________________________________ Thus, It is clear from the aforesaid provision as it stood prior to amendment i.e. as in the year 1973 that the land regranted should not be transferred without prior permission of the Deputy Commissioner and such sanction shall be made on payment of 15 times of the amount of full assessment of the land. As can be seen from the document produced at Annexure-A, the re-grantees paid 21 times of land revenue assessment, which includes 15 times assessment as was required to be paid by re-grantees for getting permission to alienate. Even otherwise, the respondents have not denied that the petitioners have paid the said amount. After obtaining prior permission from the jurisdictional authority to alienate the land in question on 21.6.1973 the re-grantees have executed the sale deeds in favour of the Vendors of the petitioners herein. Thus it is clear from the records that only after getting requisite permission from the competent authority, the property was sold by the re-grantees in favour of the Vendors of the petitioners. It is relevant to note here itself that, by the notification dated 16.8.67 bearing No. RD. 31.MVS. 67, issued by the State Government, the powers of Deputy Commissioner under Mysore Village Offices Abolition Act, 1961, were delegated to the jurisdictional Assistant Commissioner. In this case the order at Annexure-E is passed by Assistant Commissioner, Thus, there is absolutely no violation of provision of Sub-section (3) of Section 5 of the Act as it stood then i.e., in the year 1973.

As the transactions in question took place prior to 1978, the provisions as amended in 1978 are not applicable to the facts of this case. Thus, on re-considering the material on record 1 conclude that the sale deeds vide Annexures-C and D and subsequent sale deeds vide Annexure-G and H do not violate the provisions of Section 5(3) of the Act as it stood then, inasmuch as the sale deeds vide Annexures- C and D were executed on 27.6.1973 i.e., much prior to the amendment. Thus, the subsequent amendment to Section 5(3) of the Act has got no bearing on the case on hand.

The first respondent has also observed in his order that the petitioners have violated the provisions of Section 79(A) and (B) of the Karnataka Land Reforms Act. If really the petitioners have violated the aforesaid provisions, it is for the Deputy Commissioner to initiate action against the petitioners under the provisions of the Land Reforms Act and the 1st respondent-Tahsildar has no jurisdiction to annual the sale deeds executed in favour of the petitioners on the said ground. Moreover, as can be seen from the order passed by the Karnataka Appellate Tribunal vide Annexure-K, the Appellate Tribunal has held that the petitioners have not violated the provisions of Section 79A and 80 of the Act. It is also held therein that the petitioners herein are agriculturists and that their income from other sources other than agriculture income does not exceed Rs. 50,000/ per annum. The said order of the Appellate Tribunal has become final, inasmuch as, the same has remained unchallenged. Under such circumstances the order impugned in this writ petition is totally illegal and cannot be sustained.

It is contended on behalf of the contesting respondents No. 3 to 23 that the petitioners have got an alternative remedy of appeal u/s 3(2) of the Act before the District Judge of the district and that therefore, the writ petition is not maintainable. The said submission of the respondents cannot be accepted inasmuch as the impugned order is passed u/s 5(4) and Section 7 of the Act. The impugned order cannot be said to be an order passed u/s 3(1) of the Act. It is only if the order is passed u/s 3(1) of the Act, the appeal lies to the District Judge u/s 3(2) of the Act. As the impugned order in question is passed u/s 5(4) of the Act, the appeal will not lie before the District Judge. Even otherwise, there is no embargo for this Court to entertain this writ petition, as the order under challenge is totally opposed to law at the first look itself. In view of the above, the impugned order cannot be sustained and the same is liable to be set aside. Hence, the following order is made.

Writ Petition is allowed. Order Annexure-X dated 26.10.2005 in No. HQA:CR(N):23/2002-03 passed by the Tahsildar, Bangalore North Taluk, Bangalore is quashed.