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Basanagouda Takanagouda Patil and ors. Vs. State of Mysore and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKarnataka High Court
Decided On
Case NumberWrit Petn. Nos. 1878, 1949, 1950 and 1951 of 1971
Judge
Reported inAIR1976Kant197; ILR1976KAR964; 1976(1)KarLJ385
ActsConstitution of India - Articles 14 and 226; Karnataka Prevention of Fragmentation and Consolidation of Holdings Act, 1966 - Sections 6; Land Acquisition Act, 1894 - Sections 39 to 41
AppellantBasanagouda Takanagouda Patil and ors.
RespondentState of Mysore and ors.
Appellant AdvocateV. Krisihna Murthy, Adv.
Respondent AdvocateM.P. Chandrakantharaja Urs, Government Adv. and ;C.S. Kothavale, Adv.
Excerpt:
.....such an act, provided it does not infringe fundamental rights, will give the necessary relief to the state .13. we think, however, it is unnecessary to pursue this aspect of the contention urged or to decide the question whether or not the state was bound by the provisions of section 6 of the fragmentation act, as we are clearly of the view that involuntary transfers do not fall within the scope and ambit of that section and, consequently, the impugned acquisitions would not be hit by it. for all these reasons, we are clearly of the view that this contention has no merit and, therefore, must fail. this contention too, therefore, must fail. in these circumstances, we fail to see any infirmity in the proceedings impugned. hence all the contentions fail......lands were proposed for acquisition by a notification dated 31-1-1969 under section 4 of the land acquisition act. after following the procedure prescribed by the act, a further notification under section 6 was also issued. both these notifications were duly gazetted. thereafter, an award had also been passed even before the petitioners approached this court under article 226 of the constitution.3. as a result of the notification under section 6 of the act, fragments of lands ranging in extent between 1 and 8 guntas had been created, as the said extents were left out of acquisition. it is further apparent from the annexures to the petition that this acquisition was undertaken at the instance of certain villagers who had moved the panchayat concerned which, in its turn, had moved.....
Judgment:

B. Venkataswami, J.

1. This batch of four petitions have been brought up before us on a reference by a learned single Judge. They can be disposed of by a common order as the questions of fact and law raised are common.

2. Briefly stated, the material facts are as follows: For the Purpose of extension of a village by name Nirenarti, certain lands were Proposed for acquisition by a notification dated 31-1-1969 under Section 4 of the Land Acquisition Act. After following the procedure prescribed by the Act, a further notification under Section 6 was also issued. Both these notifications were duly gazetted. Thereafter, an award had also been passed even before the petitioners approached this Court under Article 226 of the Constitution.

3. As a result of the notification under Section 6 of the Act, fragments of lands ranging in extent between 1 and 8 guntas had been created, as the said extents were left out of acquisition. It is further apparent from the annexures to the petition that this acquisition was undertaken at the instance of certain villagers who had moved the Panchayat concerned which, in its turn, had moved the authority competent to acquire those lands under the Act. It was also alleged that the villagers had contributed a portion of the funds for that purpose. On 22-12-1969 after the issuance of the notification under Section 6 of the Act, the Panchayat concerned executed an agreement in favour of the Government, undertaking to bear the cost of such acquisition.

4. The petitioners have challenged the acquisition of their lands on various grounds in the present petitions, which have been filed only on 23-7-1971. It is unnecessary to refer to all the grounds raised therein, having regard to the points pressed before us, which shall be detailed hereafter.

5. On behalf of the respondent-State, a ground of objection based on inordinate delay in the petitioners' approach to this Court, has been raised. It is convenient to consider this question, before adverting to the other contentions urged on behalf of the petitioners.

6. From the allegations in the petitions, it can be seen that no serious attempt at all has been made to explain the inordinate delay involved in approaching this Court. The notification under Section 6 came to be gazetted as early as on 9-10-1969. It has also been followed up by an award. All the same, the petitioners have approached this Court only on 23-7-1971, that is, after a lapse of nearly 21 months from the date of the publication of the notice under Section 6. The only explanation offered in the course of the arguments was that they had earlier approached this Court in the month of April 1971 itself. This, in our judgment, does not afford any acceptable basis to explain the delay involved as even by that day the petitions were hopelessly delayed. It was then urged that in as much as the petitioners' fundamental rights were involved, this delay ought not to be held up against them as barring relief. We are not impressed by this submission, especially in the absence of any reasonable explanation offered on their behalf, furnishing reasons for their not approaching the Court earlier. This clearly bespeaks of laches on the part of the petitioners. Having regard to all the circumstances of the case, we are satisfied that the delay involved is inordinate enough to disentitle the -petitioners to relief under Article 226 of the Constitution. For those reasons, we decline to exercise the jurisdiction under Article 226 and grant relief to the petitioners. However, since the questions raised were debated at some length, we shall proceed to examine briefly the contentions urged.

7. The first contention urged is that having regard to the -provisions of Sections 6 and 39 of the Karnataka Prevention of Fragmentation and Consolidation of Holdings Act, 1966 (Act I of 1967) (hereafter referred to as the Fragmentation Act), the acquisitions in question were void, inasmuch as even the State, which is the acquiring authority, was bound to comply with those provisions, in the absence of any provision specifically exempting or excluding it (the State) from the purview of their operation. For a proper appreciation of this contention, it is necessary to set out some of the relevant Provisions of the Fragmentation Act.

Section 2(g) defines 'fragment' thus:

'2 (g) 'fragment' means a holding of land of less extent than the appropriate standard area determined under Section 3: Provided that no holding shall be deemed to be fragment by reason of any diminution in its area by diluvion.'

Section 6 reads:

'Fragmentation prohibited - No land in any area shall be transferred or partitioned or sub-divided so as to create a fragment.'

Section 7 reads:

'Notwithstanding anything contained in any law for the time being in force,-

(a) no fragment, in respect of which a notice has been given under sub-section (2) of Section 4, shall be sold at any sale held under the orders of any Court except after notice to the owners of contiguous survey numbers or recognised sub-divisions of survey numbers; and

(b) no land shall be sold at such sale so as to leave a fragment.'

The portion relevant in Section 39 reads:

'(1) The transfer or partition of any land contrary to the provisions of this Act shall be void.

(2) The owner of any land so transferred or partitioned shall be liable to pay such fine not exceeding two hundred and fifty rupees as the Deputy Commissioner may, subject to the general orders of the State Government, direct. Such fine shall be recoverable as arrears of land revenue. (3) ** ** **'

8. Sri V. Krishnamurthy, learned Counsel for the petitioners, argued that the language of Section 6 did not leave any doubt as to the fact that it was applicable to all kinds of transfers of land, voluntary as well as involuntary, and would take within its ambit compulsory acquisitions under the Act and that that being so, in the absence of any specific provision exempting the State from the operation of the provisions of the Fragmentation Act, it was not open to the State to create a 'fragment' within the meaning assigned to that expression in that Act. In support of this submission, our attention was invited to two reported decisions which will be referred to presently. On behalf of the respondents, it was submitted that the Provisions of Section 6 of the Fragmentation Act had reference only to transfers inter vivos and would not apply to involuntary transfers brought about when the State acquires land under the Act. That this was the clear intendment of the Legislature while enacting! Section 6 of the Fragmentation Act, would also be apparent from the provisions made in regard to Court sales which are also involuntary transfers, which otherwise would have been unnecessary if the intention was that Section 6 should cover involuntary transfers also.

9. The first of the reported decisions relied on for the petitioners in Wilfred Pereira Ltd. v. Commr. of Income-tax, Madras, : [1964]53ITR747(Mad) . In that case, the Madras High Court was concerned with the interpretation of Section 12-B of the Indian Income-tax Act, 1922, for the purpose of assessment of capital gains arising from the acquisition of agricultural land belonging to the tax-payer. It was observed therein that the word 'transfer' in Section 12-B would include transfers by act of parties and transfers by operation of law. It was further enunciated thus:

'... ... ... ... .... .In our opinion, any divestiture of title would amount to a transfer, The transferor may not be a willing party. But nevertheless his title to the property is divested from him and the result is, the title is transferred ... ...... ... ... ... ...'

10. It seems to us inappropriate to give to the expression 'transferred' occurring in the Fragmentation Act the meaning attributed to that expression in the context of the Income-tax Act. Moreover, if a combined reading of the provisions of Sections 6 and 7 of the Fragmentation Act were to disclose an intention on the part of the Legislature to exclude involuntary sales from the purview of Section 6, except as regards those specified under Section 7, as we think it does, we do not think it is permissible to accord to that expression a meaning of such wide amplitude, as we have been invited to do on behalf of the petitioners. Hence, this decision relied on cannot be of any assistance to the petitioners.

11. It is no doubt true that the legal position in regard to the binding character of the laws on the State is that in the absence of Provision in a statute specifically or by necessary implication excluding the State from the operation of a statute, the State should ordinarily be held bound by it, in order to avoid confusion and discrimination in given cases. This is not to say that even if the intention to the contrary of the Legislature were ascertainable, express provision providing for such exemption or exclusion must be made in such a statute.

12. In this connection, it is relevant to refer to the observation of the Supreme Court in the case of Supdt. and Remembrancer of Legal Affairs, West Bengal v. Corporation of Calcutta, : 1967CriLJ950 . It is observed therein:

' ... .. . We have no Crown; the archaic rule based on the Prerogative and perfection of the Crown has no relevance to a democratic republic; it is inconsistent with the rule of law based on the doctrine of equality. It introduces conflicts and discrimination. There is, no justification to accept the English canon of construction, for it brings about diverse results and conflicting decisions. On the other hand, the normal construction namely, that the general Act applies to citizens as well as to State unless it expressly or by necessary implication excepts the State from its operation, steers clear of all the anomalies. It prima facie applies to all States and subjects alike, a construction consistent with the philosophy of equality enshrined in our Constitution. The natural approach avoids the archaic rule and moves with the modern trends. This will not cause any hardship to the State. The State can make an Act, if it chooses, providing for its exemption from its operation. Though the State is not expressly exempted from the operation of an Act, under certain circumstances such an exemption may necessarily be implied. Such an Act, provided it does not infringe fundamental rights, will give the necessary relief to the State ... ... ... ... ...'

13. We think, however, it is unnecessary to Pursue this aspect of the contention urged or to decide the question whether or not the State was bound by the provisions of Section 6 of the Fragmentation Act, as we are clearly of the view that involuntary transfers do not fall within the scope and ambit of that section and, consequently, the impugned acquisitions would not be hit by it.

14. If the expression 'transferred' concurring in Section 6 were to include involuntary transfers, as contended, it would also take within its purview sales in invitum, such as Court sales, wherein the volition of the owner becomes immaterial. It, was, therefore, unnecessary for the Legislature to have enacted Section 7 wherein special provision has been made in regard to such Court sales. The very fact that the Legislature has thought it fit to make such special provision, is a clear indication that it has never intended the provisions of Section 6 to cover cases of involuntary sales, In other words, if the Legislature had wanted Section 6 to apply to cases of transfers by acquisition, it would have provided for it by making appropriate provision, similar to the one in Section 7 specifically governing Court sales. For all these reasons, we are clearly of the view that this contention has no merit and, therefore, must fail.

15. The next contention is that the provisions of Sections 39 to 41 of the Act which primarily govern acquisitions for the purposes of a Company ought to have been followed. This argument is more or less based on the fact that the Village Panchayat concerned was required to execute an agreement such as the one referred to earlier, undertaking to bear the cost of acquisition. This contention is devoid of substance as the purpose of the acquisition, namely, the village extension, is a public purpose and the Panchayat is not a company within the meaning of the Act. This contention too, therefore, must fail.

16. The last contention relates to the fact that no notice as per Section 4 had been served on the owner, a minor, concerned with the acquisition of the land involved in Writ Petition No. 1878 of 1971 and that he had not been intimated of the fact of a report having been sent to the Government under Section 5-A of the Land Acquisition Act. On behalf of the State, it has been stated that the said notice had been served on the mother of the minor and that no objections having been filed by her to the proposed acquisition, she was not entitled to any such intimation under Section 5-A of the Act. In these circumstances, we fail to see any infirmity in the proceedings impugned. Hence all the contentions fail.

17. In the result, these petitions are dismissed, but without costs.

18. Petitions dismissed.


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