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Kallanagouda Somanagouda Patil Vs. Rudragouda and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKarnataka High Court
Decided On
Case NumberWrit Pten. No. 5695 of 1974
Judge
Reported inAIR1978Kant61; 1978(1)KarLJ34
ActsKarnataka Prevention of Fragmentation and Consolidation of Holdings Act, 1967 - Sections 2, 3, 4, 4(2), 5(1), 24, 37 and 47; Karnataka General Clauses Act, 1899 - Sections 6; Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947; Karnataka Prevention of Fragmentation and Consolidation of Holdings Act, 1966; Karnataka Land Revenue Act, 1964
AppellantKallanagouda Somanagouda Patil
RespondentRudragouda and ors.
Appellant AdvocateR.H. Chandangoudar, Adv.
Respondent AdvocateB.S. Raikote, Adv.
Excerpt:
.....karnataka act. hence, the special deputy commissioner, dharwar, as also the karnataka revenue appellate tribunal, bangalore, were clearly in error in declaring the sale of the land in question in favour of the petitioner, as void......is situate in the district of dhar-war. the bombay act was in force in the four districts of the bombay area including the district of dharwar, which became part of the new state of mysore on reorganisation of states with effect from 1-11-1956. by proviso (a) to section 3 of the kamataka act, it is expressly declared that notwithstanding anything contained in the first part of section 3, standard area means the area determined under the bombay act so far as the lands situate in the district of north kanara are concerned. the proviso is applicable to the lands situate in the district of north kanara and is not applicable to lands in other districts such as bijapur, belgaum and dharwar which were also governed by the bombay act till the said act was repealed by the karnataka act in the.....
Judgment:

Malimath, J.

1. This Writ Petition has come to us on a reference made by Jagannatha Shetty J., on the ground that this Writ Petition raises an important question of law for determination.

2. The First respondent sold Survey No. 76/3B of Rayanal village, Hubli Tuluk, in the district oE Dharwar to the petitioner on the 13th of June 1969. The Karnataka Prevention of Fragmentation and Consolidation of Holdings Act, 1966, came into force on the 1st of May 1969 (hereinafter referred to as 'the Karnataka Act'). By Section 47 of the Karnataka Act, the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947, (hereinafter referred to as 'the Bombay Act') was repealed, expressly providing that Section 6 of the Karnataka General Clauses Act, 1899, shall be applicable in respect of such repeal and Section 24 of the said Act shall not be applicable. The first respondent made an application to the Special Deputy Commissioner, Dharwar, under Sec, 5 (J) of the Karnataka Act for a declaration that the sale of the T.and in favour of the petitioner is void, the said sale having been made in contravention of the mandatory prohibition contained in Sub-section (1) of Section 5 of the Karnataka Act. The case put forward by the first respondent before the Special Deputy Commissioner was that though the sale has taken place after the Karnataka Act came into force, the sale is void as the land in question was determined as a fragment under the Bombay Act before it was repealed. The land measures an extent of 2 acres 23 guntas and it is not disputed that it was a 'fragment' as defined in Section 2(4) of the Bombay Act, the same having been so determined under the provisions of the Bombay Act. The Special Deputy Commissioner, Dharwar, by his order dated 29-1-1974 (Exhibit 'A'), declared that the sale of the land in favour of the petitioner is void, it having been effected in contravention of Section 5 (1) of the Karnataka Act, imposed a fine of Rs. 50/- and directed summary eviction of the petitioner on the ground that he is in unauthorised possession of the hind- The said order was challenged by the petitioner before the Karnataka Revenue Appellate Tribunal, Bangalore, in revision under Section 37 of the Karnataka Act, The revenue Appellate Tribunal by its order dated 27-9-1974 (Exhibit 'B') dismissed the revision petition and affirmed the order of the Special Deputy Commissioner. It is the said orders of the Special Deputy Commissioner and the Tribunal that have been challenged by the petitioner in this writ petition.

3. The only question for consideration in this is as to whether the sale of the land in question effected on 13-6-1969, after the Karnataka Act came into force, is void as offending Section 5 (1) (a) of the Karnataka Act. The view taken by the Special Deputy Commissioner and the Tribunal is that the land in question is a fragment and that therefore the prohibition contained in Section 5 (1) (a) is attracted. The said provision provides that no person shall sell any fragment in respect of which a notice has been given under Sub-section (2) of Section 4, except in accordance with the provisions of Clause (b). As it is nobody's case that Clause (b) is applicable, we consider it unnecessary to refer to the same. The word 'fragment' defined under Section 2 (g) of the Karnataka Act, means a holding of land of less extent than the appropriate standard area determined under Section 3 and the proviso to that Section, however, provides that no holding shall be deemed to be a fragment by reason of any diminution in its area by diluvion. Section 3 of the Karnataka Act provides for the determination of standard area. It reads as follows:

'For the purpose of this Act, standard area means the area specified in column (3) of the Schedule to this Act, in respect of the class of land specified in the corresponding entry of column (2) of the said schedule;

Provided that-

(a) in the district of North Kanara, standard area means the area determined to be the standard area for different classes of land in different local areas in the said district under the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947 (Bombay Act 62 of 1947), and in force before the commencement of this Act.

(b) in the District of South Karnara, standard area means in respect of.

(i) dry- crop land, one acre,

(ii) paddy or rice crop land, fifteen guntas,

(iii) garden crop land, ten guntas'. Section 4 of the Karnataka Act provides for the entry of all fragments ia village in the record of rights. It reads as follows:

'(1) As soon as may be after the commencement of this Act, all fragments in a village shall be entered as such in the Record of Rights, or where there is no Record of Rights in such village record as the State Government may prescribe.

(2) Notice of every entry made under Sub-section (1) shall be given in the manner prescribed for the giving of notice under Chapter II of the Karnataka Land Revenue Act, 1964 (Karnataka Act 12 of 1964), of an entry in the Register of Mutations',

4. The Schedule contemplated by the Section 3 of the Karnataka Act indicates the extent of area that is declared as standard area in regard to different classes of lauds. The lands have been classified in the said schedule into seven classes depending upon the rainfall and the irrigation facilities. It is clear from the scheme of the Karnataka Act that 'fragment' means holding of land of less extent than the standard area determined under Section 3 of the Karnataka Act. The determination of the said standard area has to be made with reference to the class of the land having regard to the specification in the Schedule to the Karnataka Act. After the standard area is so determined under Section 3, all fragments in a village are required to be entered in the record of Rights or where there is no Record of Rights, in such village record as the State Government may prescribe. Notice of every such entry which is required to be made under Section 4 (1) is required to be given in the prescribed manner, It is not disputed that the land in question has not been entered in the Record of Rights as 'fragment' as required by Section 4 of the Karnataka Act and that no notice of any such entry as required by Sub-section (2) of Section 4 has also been given. It is also admitted that no determination of the standard area as required by Section 3 of the Karnataka Act has been made. Tt is, therefore, clear that the land in question cannot be regarded as a 'fragment as denned in Section 2 (g) of the Karnataka Act. The bar contained in Clause (a) of Sub-section (1) of Section 5 is that no person shall sell any fragment in respect of which notice has been given under Sub-section (2) of Section 4, except in-accordance with the provisions of Clause (b). As admittedly, no notice has been given under Sub-section (2) of Section 4 of the Karnataka Act in respect of the land in question, the bar against alienation of a fragment contained in Section 5 (1) (a) is not attracted. But, what was maintained by the learned Counsel for the first respondent is that we should not look to the provisions of the Karnataka Act for the purpose of finding out whether the land in question is a fragment and for tie purpose of determining as to whether the sale of the land in question has been effected in contravention of Section 5 (1) (a) of the Karnataka Act. It was maintained by the learned Counsel for the first respondent that the laud in question having already been declared as 'fragment' under the repealed Bombay Act the same continues to be a fragment under the Karnataka Act and therefore, the prohibition contained in Section 5 (1) (a) is attracted to the facts of the present case. For this argument, reliance was placed on tne language of Section 6 of the Karnataka General Clauses Act which has been expressly marie applicable by the repealing Section 47 of the Karnataka Act. It is also necessary to point out at this stage that the same Section 47 provides that Section 24 of the General Clauses Act shall not be applicable in respect of the repeal of the Bombay Act, and other enactments specified in Section 47 of the Karnataka Act, Section 6 of the Karnataka General Clauses Act, 1899, reads as follows.

'Where this Act or any Karnataka Act made after the commencement of this Act repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not-

(a) revive anything not in force or existing at the time at which the repeal takes effect; or

(b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or

(c) affect any right, privilege, obligation or liability -- acquired, accrued or incurred under any enactment so repealed; or

(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or

(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the repealing Act had not been passed.'

5. Relying on Section 6 of the Karnataka General Clauses Act, it was maintained by the learned Counsel for the first respondent that when the land in question was declared as 'fragment' under the Bombay Act, an obligation or liability was incurred under the repealed Bombay Act and that the same is therefore, enforceable under Section 5 (1) (a) of the Karnataka Act.

6. It is necessary to point out that the sale of the land in question itself took place after the Karnataka Act came into force and not when the repealed Bombay Act was in force. Therefore, it appears to us that the question of incurring any liability or obligation under the repealed enactment does not arise in this case. But, even assuming for the sake of argument that the learned Counsel for the first respondent is right in maintaining that by the determination under the Bombay enactment that the land in question is a 'fragment' a liability or obligation can he deemed to have been incurred it has to be pointed out that such legal effect does not flow, having regard to the fact that Section 3 of the Karnataka Act discloses a different intention. The opening part of Section 6 of the General Clauses Act indicates that the consequences specified in that section shall not flow !f a different intention appears in the repealing enactment. The question for consideration is as to whether it can be said that a different intention is discernible from the provisions of the Kamataka Act.

7. Section 3 of the Kamataka Act provides for determination of standard area, which is necessary for determining a fragment. It provides that 'standard area' means the area specified in column (3) of the Schedule to the Karnataka Act, in respect of the class of land specified in the corresponding entry of column (2) of the said Schedule. It is clear from the same that the standard area has to be determined tinder Section 3 only with reference to the Schedule to the Kamataka Act and not with reference to the provisions of the repealed enactment. The proviso (a) to Section 3 of the Karnataka Act, iu express terms, provides that in the district of North Kanara, standard area means the area determined to be the standard area for different classes of land in different local areas in the said district under the Bombay Act, and in force before the commencement of the Karnataka Act. The land in question is situate in the district of Dhar-war. The Bombay Act was in force in the four districts of the Bombay Area including the district of Dharwar, which became part of the New State of Mysore on reorganisation of States with effect from 1-11-1956. By proviso (a) to Section 3 of the Kamataka Act, it is expressly declared that notwithstanding anything contained in the first part of Section 3, standard area means the area determined under the Bombay Act so far as the lands situate in the district of North Kanara are concerned. The proviso is applicable to the lands situate in the District of North Kanara and is not applicable to lands in other districts such as Bijapur, Belgaum and Dharwar which were also governed by the Bombay Act till the said Act was repealed by the Karnataka Act in the year 1966. Proviso (a) to Section 3 clearly indicates the intention of the legislature of accepting the determination of standard area made under the repealed Bombay Act only in regard to the lands situate in the District of North Kanara, In other words, the determination of the standard area made under the Bombay Act in respect of the lands situate in the district of Bel-gaum, Bijapur and Dharwar is not required to be deemed to be the standard area for the purpose of the Karnataka Act. The Schemes of Section 3 makes it clear that the legislature has expressed its intention not to treat the determination of the standard area made in respect of the lands situate in the districts of Belgaum, Bijapur and Dharwar as standard area for the purpose of the Karnataka Act, The consequences specified in Section 6 of the Karnataka General Clauses Act will not be attracted to the lands situate in the said three districts even if determination of standard area was made under the Bombay Act be-fore the Karnataka Act came into force. We have therefore no hesitation to take the view that the bar contained in Section 5 (1) (a) is not applicable to the sale of the land in question, which was made on 13-6-1969, after the Karnataka Act came into force. Hence, the Special Deputy Commissioner, Dharwar, as also the Karnataka Revenue Appellate Tribunal, Bangalore, were clearly in error in declaring the sale of the land in question in favour of the petitioner, as void.

8. For the reasons stated above, this writ petition is allowed and the impugned orders (Exhibits 'A' and 'B') passed by the Special Deputy Commissioner, Dharvar and Karnataka Revenue Appellate Tribunal, Bangalore, are hereby quashed and the original petition filed by the first respondent is dismissed. The petitioner is entitled to his costs from the first respondent Advocate's fee Rs. 200/-.

9. As admittedly the first respondent hasobtained the possession of the land on thestrength of the impugned orders, we directhim to restore the possession of the laticl tothe petitioner immediately.

10. Petition allowed.


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