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Seena Seregara Vs. Land Tribunal - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKarnataka High Court
Decided On
Case NumberW.A. No. 616 of 1978
Judge
Reported inILR1985KAR805
ActsMysore Land Revenue Rules; Mysore Land Revenue (Amendment) Rules, 1960 - Rule 43(G)4, 43(G)5 and 43(G)7; Karnataka Land Reforms Act, 1961 - Sections 2(34) and 5; Karnataka Land Reforms (Amendment) Act, 1979
AppellantSeena Seregara
RespondentLand Tribunal
Appellant AdvocateB. Veerabhadrappa, Adv.
Respondent AdvocateT.S. Ramachandra, Adv. for R-2, ;A.S. Viswanath, Adv. for R-3; ;M.R. Achar, Govt. Adv. for R-4
DispositionAppeal allowed
Excerpt:
(a) mysore land revenue rules, as amended in i960 rule 43(g) 4, 5 and 7 - lease in breach of conditions, not automatically void -- until grant is terminated by government, lease legal and possession of lessee lawful.;contended that the tenancy created in contravention of rule 43(c) contrary to terms of grant is illegal and void defeating the provisions of law and opposed to public policy; and also that the lease is contrary to law contravening section 5 of karnataka land reforms act.;if the grantee leases the land in breach of the conditions regarding non-alienability and the personal cultivation, the same does not automatically render the lease by him void. in the event of such a breach the state government has the discretion to terminate or not to terminate the grant for the breach of.....ordermalimath, c.j.1. this appeal is against the order of the learned single judge dated 7-11-1978 in writ petition no. 8338/76. the material facts may briefly be stated as follows :-2. land bearing sy. no. 23 situate in kone hosur village in shimoga taluk was granted to respondent 2 devappa under rule 43(d)(2) of the mysore land revenue rules as amended in the year 1960 (hereinafter referred to as the rules), by the special deputy commissioner of shimoga district, on the ground that he is a displaced person. the total extent of the land granted measures 12 acres out of which 8 acres is wet land and 4 acres is dry land. the grant made in favour of devappa is subject to the statutoryconditions prescribed by rule 43(g) of the rules. in pursuance of the order made by the special deputy.....
Judgment:
ORDER

Malimath, C.J.

1. This appeal is against the order of the Learned Single Judge dated 7-11-1978 in Writ Petition No. 8338/76. The material facts may briefly be stated as follows :-

2. Land bearing Sy. No. 23 situate in Kone Hosur Village in Shimoga Taluk was granted to Respondent 2 Devappa under Rule 43(D)(2) of the Mysore Land Revenue Rules as amended in the year 1960 (hereinafter referred to as the Rules), by the Special Deputy Commissioner of Shimoga District, on the ground that he is a displaced person. The total extent of the land granted measures 12 acres out of which 8 acres is wet land and 4 acres is dry land. The grant made in favour of Devappa is subject to the statutoryconditions prescribed by Rule 43(G) of the Rules. In pursuance of the order made by the Special Deputy Commissioner granting the land, a samurai chit was issued in favour of Devappa on 22-6-1963. It is not disputed that in pursuance of the order of grant and the samurai chit, Devappa was actually put in possession of the land.

3. The appellant Seena Seregara made an application before the Land Tribunal, Shimoga, for grant of occupancy rights in respect of the aforementioned land Sy. No. 23 alleging that he is the tenant of the land since several years under Devappa. The Land Tribunal made an order in favour of the appellant on 3-7-1976 granting occupancy rights in respect of half portion of Sy. No. 23, under section 45 of the Karnataka Land Reforms Act, 1961, (hereinafter referred to as the Act). Devappa challenged the said order of the Land Tribunal in Writ Petition No. 8338/76. The Learned Single Judge by his order dated 7-11-1978 allowed the Writ Petition and quashed the order of the Land Tribunal. Consequently, the application of the appellant stood rejected. It is the said order of the Learned Single Judge that is challenged by the appellant in this appeal.

4. The Learned Single Judge had held that the alleged lease in favour of the appellant Seena Seregara is not legal and valid in view of the statutory prohibition under Section 5 of the Act in the matter of leasing lands with effect from 2-10-1965 the Tribunal having observed that there is material to establish that the tenancy of the appellant commenced in the year 1971-72. The LearnedSingle Judge has also held that Devappa could not have leased the land in favour of the appellant having regard to the statutory conditions contained in sub-rules (4) and (5) of Rule 43(G) of the Rules. The Learned Single Judge has held that the said sub-rules (4) and (5) required the grantee to cultivate the land personally and not to alienate the same without the previous sanction of the Government. As admittedly no such previous sanction of the Government was obtained in the matter of leasing the land in favour of the appellant the lease brought about in his favour in contravention of the said sub-rules (4) and (5) is held as illegal and void. In view of these findings, the Learned Single Judge held that the claim of the appellant that he was a lawful tenant in possession of the land immediately prior to 1-3-1974 cannot be accepted and that he is not entitled to the grant of occupancy rights under Section 45 of the Act.

5. It was contended by the Learned Counsel for the appellant that even assuming that the tenancy of the appellant commenced after 2-10-1965, the same cannot now be regarded as illegal and invalid on the ground that the same has come into existence in contravention of the provisions of Section 5 of the Act. In support of this contention, reliance was placed on the amendment to Section 2(34) of the Act, which defines the word 'tenant', which amendment has been brought about by Karnataka Act 1/1979. As a result of the amendment, a person who cultivates any land on lease under a lease created contrary to the provisions of section and before 1-3-1974, is also to be regarded as the tenant under the Act. It is, therefore, clear that the leases, which were brought into existence in contravention of Section 5, now stand validated by the amendment effected, by Karnataka Act No. 1/1979. Hence, the finding of the Learned Single Judge that, the lease created in favour of the appellant, is contrary to law on the ground that it has come into existence in contravention of Section 5, cannot now be sustained.

6. The next question for consideration is as to whether the Learned Single Judge is right in taking the view that the lease created in favour of the appellant is illegal and void on the ground that Devappa, the second respondent, has leased the land in contravention of Rule 43(G)(4) and (5) of the Rules. At the outset, it was contended by the Learned Counsel for the appellant that the view taken by the Learned Single Judge cannot be sustained for the obvious reason that the matter is concluded, by a Division Bench decision of this Court reported in Lakshmamma represented by her legal representatives -v.- the Deputy Commissioner, Mandya and Ors., 10 Law Reports 650. That was a case in which a Division Bench of this Court examined the scope and effect of Rule 43(6) of the Mysore Land Revenue Rules framed under the Mysore Land Revenue Code, 1888. That Rule dealt with the grant of land by the Government to individuals. Clause (a) of Rule 43(6) of the said Rules provided that every grant of land under sub-rule (1) of Rule 43 shall be subject to the condition where the grant is made for an upset price or reduced price, that the land granted shall not be alienated for a period of 10 years from the date of grant. Clause (b) of sub-rule (6) of Rule 43 provided that if the provisions of clause (a) are contravened, the land granted may be summarily resumed by the Government and such land shall vest in the Government free from all encumbrances and neither the grantee nor the alienee shall be entitled to any compensation. It is clear and is also not disputed that the provisions of Rule 43(6) of the Mysore Land Revenue Rules, as they then stood, which were considered in the aforesaid decision, are in pan materia with Rule 43(G)(4), (5) and (7) of the Mysore Land Revenue Rules as amended in the year 1960 with which we are concerned in this case. In that case, the Court was required to examine the effect of the contravention of Rule 43(6)(a) of the said Rules, which provided that the grantee shall not alienate for a period of 10 years from the date of grant, the land which has been granted for an upset price or for a reduced price. After examining the provisions of Rule 43(6), this is what the Court has laid down in the said decision :

'7. Although there can be no doubt that an omission to makemention of this condition in the document of grant may not relieve thegrantee of the liability under this Rule, the actual effect of the Rule is not that no title is acquired under the grant or that upon the breach of the condition against alienation the grant becomes void abinitio, but that title acquired under the grant is liable to be lost or can be taken away by action which the Government is permitted to take under Clause (b). The destruction of the rights of subsequent alienees orencumbrancers is consequential upon a resumption being actually made.

8. The resumption according to the language employed in the Clause does not appear to be compulsory or automatic. It is a matter for decision by appropriate authorities functioning under the Land Revenue Code and authorised to exercise the powers of the Government under this clause. Although the Clause says that the resumption may be summary, the decision to resume or not to resume is itself a matter of discretion or choice with the Government or the appropriate revenue officer of the Government.

9. The result is that the grantee does acquire title and that in normal circumstances an alienee from his will also acquire title, but that both the original grantee as well as the alpine take the property with notice that their title is liable to be put an end by action if taken by the Government or its officers under the Rule 43(6) (b). Because title has been acquired and because such title is liable to be lost upon the Deputy Commissioner taking action, the undoubted consequences of the action which the Deputy Commissioner may take or resume the land is that it affects the title to property or rights inrespect of the property of either the original grantee or the alienee. Because the resumption is not automatic but depends upon a decision to be taken by theDeputy Commissioner, the decision which he is so required to take must on accepted principles, be regarded as quasi judicialfunction ....'

This decision is, therefore, an authority for the proposition that when grant of a land is made by the Government subject to the condition that the same shall not be alienated for a specified period, if the grantee makes an alienation in contravention of a such a term, the same does notautomatically render the grant void, but, it only gives a right to the grantor to resume the land if it so pleases. As the provisions of the relevant clauses of Rule 43(G) of the Rules, with which We are concerned in this case, are in pan materia with the provisions of Rule 43(6) of the Land Revenue Code Which were considered in Lakshmamma's case (supra), the principle laid down in the said decision fully governs the present case as well. As the question cannot be regarded as resintergra following the said decision, the order of the Learned Single^ Judge has to be set aside. But, it was contended by Sri T.S. Ramachandra, Learned Counsel for respondent-2 (Devappa), that the decision in Lakshmamma's case (supra), requires reconsideration on the ground that some important aspects were not argued and, therefore, not considered by this Court in the said decision. We, therefore, purpose to consider the rival contentions in this behalf.

7. The principal contention of Sri Ramachandra is that the lease created by Devappa in favour of the appellant is void on the ground that the object of the agreement is not lawful as it is forbidden by law, that it would defeat the provisions of law and that it is also opposed to public policy. Invoking Section 23 of the Contract Act, it was contended that as the object of the lease is unlawful, the same is void. It is not disputed that the grant in favour of Devappa was made at a concessional price and that therefore, the grant was subject to the conditions specified in Rule 43(G)4, (5) and (7) of the Rules. For the purpose of convenience, the said provisions are extracted as follows :

'(4) Where the grant is made free of cost, or is made at a price which is less than the full market value, the grant shall be subject to thecondition that the land shall not be alienated for a period of 15 years from the date of the grantee taking possession of the land, after the grant:

Provided that such land may be alienated with the previous sanction of the Government and subject to such conditions as the Government may specify, if the Government is of the opinion that in thecircumstances of any case, it is just and reasonable to permit such alienation either for purposes of acquiring some other land or for any other purpose :

Provided further that nothing in this Clause shall apply to :

(a) the alienation of any land in favour of the State Government or Cooperative Society as security for loans obtained forimprovement of the land or for buying cattle or agricultural implements for the cultivation of the land, or alienation of any land infavour of the Indian Coffee Board as security for loans advanced by the Indian Coffee Board under the Coffee Development Plan;

(b) the leasing of any land by a person who is a widow, a minor or who is subject tophysical or mental disability or who is a serving member of the armed forces.

(5) The grantee shall cultivate the land personally.

(6) ................

(7) The grant is liable to be terminated and the land resumed if any of the aforesaid conditions is not fulfilled, and on such resumption the land shall vest in Government free from all encumbrances :

Provided that no land shall be resumed under this Clause except after giving an opportunity to the grantee or his successor in interest to show cause why the grant should not be terminated and the land resumed.'

We are examining the contention of Sri Ramachandra on the assumption that there is a lease by Devappa in favour of the appellant without deciding the question of lease, as that is a question which should be ultimately decided by theTribunal. The contention of Sri Ramachandra is also on the assumption that there is a lease by Devappa in favour of the appellant. We are dealing with the legal contention on the basis of these assumptions without recording our finding in that behalf either in favour of the second respondent or in favour of the appellant. The contention of Sri Ramachandra is that if Devappa has leased the land as contended by the appellant in his favour before the expiry of 15 years from the date of taking possession by him in pursuance of the grant made in his favour, the said lease would be in clear contravention of the statutory provisions contained in Rule 43(G)(4) and (5). As sub-rule (5) of Rule 43(G) requires that the grantee should cultivate the land personally, it is obvious that if the grantee leased the land in favour of any other person, the same would have the effect of his ceasing to cultivate the land personally. Therefore, it could really amount to contravention of the statutory condition imposed by Rule 43(G)(5). Similarly, if the land has been leased before the expiry of 15 years from the date of taking possession by the grantee, that action would also be in clearcontravention of the statutory condition imposed by Rule 43(G)(4) of the Rules. The submission of Sri Ramachandra is that the very case pleaded by the appellant has the effect of admitting that the lease in his favour is in contravention of the conditions imposed by Rule 43(G)(4) and (5) of the Rules. The real question for consideration, therefore, is as to the legal effects of the contravention of the statutoryconditions imposed by Rule 43(G)(4) and (5) of the Rules. For the purpose of deciding as to whether the lease in favour of the appellant is forbidden by law or if permitted it would defeat the provisions of any law or is opposed to public policy, it would be necessary to examine the scheme and object of the Rules. Sub-rule (4) of Rule 43(G) of the Rules which prohi-bits alienation for a period of fifteen years becomesapplicable only if the grant is made free of cost or is made at a price which is less than the full market value. In other words, if the market price is paid for the grant the condition of non-alienability for a period of fifteen years does not get attracted. The relevant rules which provide for grant of lands to different persons under different circumstances show that the rules do contemplate grant of lands at market price or at a concessional price. So for as the displaced persons areconcerned, the grant is governed by sub-rule(2) of Rule 43 (D) of the Rules. It provides that the extent of land granted to adisplaced person shall not exceed the extent of land of which the displaced person was deprived due to acquisition. Clause (e) of sub-rule (2) of Rule 43(D) provides that a displaced tenant may be granted land free of cost upto two acres of wet land and with assured irrigation facilities from tanks or channels or four acres of other kinds of wet land or ten acres of dry land subject to the condition that he shall pay the betterment contribution if any in respect of that land and also the value of the trees standing on the land. It is, there fore, clear that if the displaced person becomes entitled to grant of land larger than the one contemplated by Clause (e) of Rule 43(D)(2) the land could be granted in his favour not at a concessional price but at the market price. There are similar provisions in regard to the grant in respect of other persons under different circumstances whichcontemplate land being granted at the market price and not at a concessional price. The special condition of non-alienability for a period of fifteen years, as already stated, becomesapplicable only if the land is granted free of cost or at a concessional price. The condition is imposed because the land is being granted free of cost or at a concessional price. It is therefore clear that one set of lands are granted with acondition of non-alienability and another set of lands without such a condition. Even in regard to cases to which thecondition of non-alienability becomes applicable, the first proviso to sub-rule (4) of Rule 43(G) makes it clear that previous sanction can be granted by the Government permit-ting alienation either for the purpose of acquiring some other land or for any other purpose. The fact thatalienation can be permitted by obtaining previous sanction of the Government indicates that the bar against alienation is not intended to be ah absolute one. This inference of ours is further strengthened by the second proviso to sub-rule (4) of Rule 43(G) in that it permits alienation of land in favour of the State Government or Co-operative Society or Indian Coffee Board under certain circumstances. The secondproviso further provides that the clause regarding non-alien-ability does not apply to the leasing of any land by a person who is a widow, a minor or who is subject to physical or mental disability or who is a serving member of the Armed Forces. It is also necessary to bear in mind, as rightly pointed out by Sri Achar, Learned Govt. Advocate, that there is no express provision in the Rules declaring that thecontravention of sub-rule (4) or sub-rule (5) of Rule 43(G)renders the grant illegal and void. The consequence of contravention of the conditions contemplated by Rule 43(G) is provided in sub-rule (7) of Rule 43(G). Instead of declaring that contravention of the conditions renders the grant illegal and void, sub-rule (7) provides that the grant is liable to be terminated and the land resumed. It further provides that it is only if action to resume land for failure to fulfil the conditions is taken that the land shall vest in theGovernment free from all encumbrances. Such action can be taken as is clear from the proviso to the said sub-rule (7), only after giving reasonable opportunity to the grantee or his successor in interest to show cause why the grant should not be terminated and the land resumed. It is, therefore clear that the State Government has a discretion to terminate the grant and to resume the land in the event of there being breach of the conditions specified in Rule 43(G) of the Rules That there is such a discretion was not disputed even by Sri Ramachandra, Learned Counsel for the second respondent Devappa. It is only when action to terminate the grant and to resume the land is taken that the land stands vested in the State Government and not at any earlier point of time. It, therefore, follows that until action is taken under sub - rule (7) of Rule 43 (G) of the Rules the grant remains good and valid one. The scheme of Rule 43(G) of the Rules therefore makes it clear that the grant is voidable at the discretion of the State Government if there is breach of the conditions specified in the said rule, after following the prescribed procedure. As the law vests discretion in the State Government to terminate or not to terminate the grant, it is impossible to take the view that an automatic termination of the lease comes into being the moment there is breach of the conditions. As the discretion to terminate the grant for breach of the conditions has been conferred on the State Government, it is clear that the grant is voidable and not void. When such is the consequence of breach of the conditions prescribed by sub-rules (4) and (5) of Rule 43(G) of the Rules, it is not possible to draw the inference that any lease that comes into existence in violation of the said conditions can be regarded as forbidden by law or if permitted would defeat the provisions of any law. Though the decision in Lakshmamma's case was rendered by this Court on 28-3-1967 taking a particular view of the matter, if the rule making authority was of the opinion that the decision of this Court did not truly reflect its intention,nothing would have come in its way in amending the Rules. On the other hand the enactment by the State Legislature of the Karnataka Scheduled Castes and Scheduled Tribes(Prohibition of Transfer of Certain Lands) Act, 1978, (Karnataka Act No. 2 of 1979), shows that the Legislature has accepted the view taken by this Court in Lakshmamma's case and brought about a suitable legislation. Sub-section (1) of Section 4 of the said Act provides that notwithstanding anything in any law, agreement, contract or instrument, any transfer of granted land made either before or after the commencement of the said Act in contravention of the terms of the grant of such land or the law providing for such grant or sub-section (2) shall be null and void and no right, title or interest in such land shall be conveyed or be deemed ever to haveconveyed by such transfer. It is clear from this provision that it is for the first time that the Legislature has declared a particular species of transfers as null and void. The species dealt with by Section 4 of the said Act is 'granted land' which is defined in Section 3(l)(b) of the said Act to mean any land granted by the Government to a person belonging to any of the scheduled castes or the scheduled tribes and includes land allotted or granted to such person under the relevant law for the time being in force relating to agrarian reforms or land ceilings or abolition of inams, other than that relating to hereditary offices or rights and the word 'granted' shall be construed accordingly. It is therefore clear that it is only theparticular species of transfers contemplated by Section 4 of the said Act that are declared as void and not others-When the Legislature declares only a particular species of transfers as void, the clear implication of the same is that the species of transfers not dealt with by the legislation are not intended to be declared as void. It also becomes clear that until such a declaration was made such transfers were legal and valid and therefore it becamenecessary for the Legislature to make a positive declaration that such transfers are void. This reasoning of ours receives ful support from the observations of the Supreme Court in Kripashankar -v.- Director of Consolidation, : AIR1979SC1015 which read as follows :

'At the outset it may be noticed that the Legislature has made a distinction between a transfer made by a Bhumidhar in contravention of Section 134 and a transfer made by a Sirdar or Asami in contravention of the provisions of the Act. Unlike Section 166 where under any transfer made on behalf of a Sirdar or Asami in contravention of the provisions of Chapter VIII has been declared to be void, a transfer by a Bnumidar in contravention of Section 154 has not been so declared. Section 163 merely indicates that such contravention would entail ejectment of the transferee at the instance of the Gaon Sabha but till action is taken by the Gaon Sabha the transferee continues in enjoyment. Further the very fact that by an amendment of Section 16 made by U.P. Act XXV of 1976 it was provided for the first time that a transfer by a Bhumidar in contravention of Section 154 could be declared to be void emphasises the position that under Section 163 as it stood prior to the amendment such transfer would not be void.'

On an examination of the scheme of Rule 43(G) of the Rules, we are satisfied that the conditions contemplated by sub-rules (4) and (5) thereof are not by way of absolute prohibition and that breath of those conditions only gives the grantor the discretion to terminate or not to terminate the grant and to resume the land. It is, therefore, not possible to accept the contention of Sri Ramachandra that the lease in favour of the appellant is either forbidden by law or if permitted it would defeat the provisions of any law.

8. The only question that survives for consideration is-as to whether the object of the lease can be said to beopposed to public policy. The contention of Sri Ramachandra is that in imposing the conditions regarding non-alienability and personal cultivation a particular public policy is sought to be achieved. According to his submission, the said public policy lies in ensuring that the land granted in favour of the grantee remains with him and that it is cultivated by him personally. It was submitted that the object is to ensure that the grantee himself enjoys the real fruits of the grant and that it is not alienated in favour of other persons. If that is the public policy sought to be achieved by the grant, it was contended that any agreement the object of which is to defeat this public policy would render the lease void in view of Section 23 of the Contract Act. Sri Achar Learned Government Advocate met this argument by contending that no such public policy is envisaged by the rule. He submitted that the real object of imposing these conditions is to protect the revenue of the State and not for the advancement of any public policy as asserted by Sri Ramachandra. If the public policy as contended by Sri Ramachandra was to ensure that the land remains with the grantee for a substantial period and for his benefit, provision would not have been made for alienation of such land with the previous sanction of the State Government. That the non-alienability clause does not apply to alienations in favour of the State Government and the specified authorities and to lease of land by a window, a minor or a person who is subject to physical or mental disability or who is a serving member of the Armed Forces, also shows that the object was not to ensure that the land remains with the grantee for a substantial period. The fact that wide discretion is vested to terminate or not to terminate the grant in the event of there being breach of these conditions negatives the existence of a public policy as contended by Sri Ramachandra. It is also necessary to note that these conditions are imposed only when the grant is made free of cost or at a concessional price. This circumstance justifies the inference, as rightly contended by Sri Achar, that the real purpose of imposing these conditions is to protect the revenue of the State when the grant is made free of cost or at a concessional price. In the event of breach, the State reserves the right to terminate the grant if the circumstances and the equities of the case justify such a course of action. We are, therefore, inclined to accept the contention of Sri Achar that no public policy as contended by SriRamachandra exists and that the real purpose of imposing the conditions under sub-rules (4) and (5) of Rule 43(G) of the Rules is only to protect the revenue of the State. In this connection, Sri Ramachandra relied upon the decision of the Supreme Court in Waman Shrinivas -v.- Ratilal Bhagwandas & Co., 3. : AIR1959SC689 . That was a case arising under the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, and Section 15 of the Act reads :

'Notwithstanding anything contained in any law it shall not belawful after the coming into operation of this Act for any tenant to sublet the whole or any part of the premises let to him or to assign or transfer in any other manner his interest therein :

Provided that the State Government may by notification in the Official Gazette permit in any area the transfer of interest in premises held under such lease or class of leases and to such extent as may be specified in the notification.'

Dealing with this Section the Supreme Court pointed out that it prohibits subletting and makes it unlawful fora tenant to assign or transfer his interest in the premises let to him. The language employed in Section 15 of that Act is that it shall not be lawful for any tenant to sublet or assign or transfer his interest in the premises let to him, meaningthereby that it is unlawful for him to do such acts. There is no similar provision in the Rules declaring that it is un-lawful for the grantee to lease the land before the expiry of fifteen years from the date of the grant. Hence, Sri Ramachandra cannot derive, much sustenance from this decision.

9. The next decision relied upon by Sri Ramachandra is Anderson Limited -v.- Daniel, 1924-1 KB 133. That was a case in which sub-section (1) of Section 6 of the Fertilisers and Feeding Stuffs Act, 1906, came up for consideration. It provided: 'If any person who sells any article for use as a fertiliser of the soil ....fails without reasonable excuse to give on or before or as soon as possible after the delivery of the article the invoice required by this Act .... he shall without prejudice to any civil liability, be liable on summary conviction to a penalty....' Sub-section (1) of Section 1 of that Act provided: 'Every person who sells for use as a fertiliser of the soil any article which has been subjected to any artificial process in the United Kingdom or which has been imported from abroad, shall give to the purchaser an invoice stating .... what are the respective percentages (if any) of certainchemical substances contained in the article ....' It was held by the Court of Appeal that as the object of the statute in requiring the vendor to give the statutory invoice and imposing on him a penalty in the event of his default is to protect thepurchasers of fertilisers, the effect of non-compliance with the requirement is not merely to render the vendor liable to the penalty but also to make the sale illegal and preclude the vendor from suing for the price. It was pointed out that the fact that owing to the nature of the article sold as a fertiliser an analysis of it would necessitate so expensive a process as to make itimpossible to sell it after analysis at a profit, affords no reasonable excuse within the meaning of sub-section (1) of Section 6 for omitting to give the invoice required by thatAct. It is therefore that it was held that a public policy was involved of protecting the interests of the purchasers for whose benefit the furnishing of an invoice stating what are the respective percentages of the chemicals used wascontemplated. It is necessary to note that public policy to protect the purchasers of the fertilisers was clearly discernible from the provisions of that Act. Besides the law in that case further provided imposition of penalty for failure to give the invoice to the purchaser of the fertiliser. On an examination of the Rules with which we are concerned, we have held that the condition's have not been prescribed for the purpose of advancing any public policy as such. Unlike in the Fertilisers and Feeding Stuffs Act, 1905, there is no provision forconviction and imposition of penalty for contravention of the conditions imposed by Rule 43 (G) of the Rules. Hence, in our opinion, the decision in Anderson Ltd. -v.- Daniel does not in any way advance the case put forward by SriRamaChandra.

10. The last decision cited by Sri Ramachandra is the one reported in Mistry Aniar Singh -v.-. Kulubva, 1963 ALL ER 499. That was a case in which the provisions of Section 2 of the Land Transfer Ordinance came up for consideration before the Privy Council. Section 2 of the said Ordinance prohibited occupation by a non-African unless the consent in writing of the Governor has been given. It further provided that a non-African who commits a breach of the provisions of the Ordinance becomes guilty of an offence. It is in that context that Their Lordships of the Privy Council held that a public policy was involved of ensuring that the land should be re-tained by the Africans alone. The fact that a non-African who commits breach of the said provision becomes guilty of an offence makes it abundantly clear that that law was enacted for achieving the public policy of ensuring the retention of the land by the Africans alone. In our opinion, the provisionsof that law are not in parimateria with the Rules in that there is no provision in the Rules providing that the person who commits breach of the conditions of Rule 43(G) is guilty of an offence. We have also come to the conclusion on an examination of the scheme of Rule 43(G) that no public policy as such is involved and that the conditions have been imposed only for the purpose of protecting the interests of the revenue. Hence, this decision also does not in any way advance the case of Sri Ramachandra.

11. Hence we are clearly of the opinion that the principle laid down by this Court in Lakshmamma's case does not require reconsideration, and we entirely agree with the view taken by the Division Bench of this Court in that case. It, therefore, follows that if the grantee leases the land in breach of the conditions regarding non-alienability and the personal cultivation, the same does not automatically render the lease by him void. In the event of such a breach the StateGovernment has the discretion to terminate or not to terminate the grant for the breach of the conditions depending upon the circumstances and equities of each case. Until such event happens the lease granted by the grantee remains legal and valid and the possession of the lessee would be lawful. We are therefore of the opinion that both the reasons given by the Learned Single Judge for quashing the order made in favour of the appellant are not sustainable.

12. So far as the order of the Land Tribunal is concerned, it was contended by Sri T. S. Ramachandra that it is based on surmises and conjectures and not on the consideration of the material placed by the parties. One portion of the order of the Tribunal gives an inclination of not relying upon the oral evidence and in another portion of the same order it seeks to rely upon the very same oral evidence in support of its conclusions. The Tribunal comes to the conclusion that the material justifies the inference that the appellant must have been in possession of atleast a portion of the land from 1971-72 Even assuming that the Tribunal was right in this inference, we fail to see how it could draw the furtherinference that the appellant must be regarded, as being in possession of half portion of Serial No. 23 as a tenant. Thisconclusion is based on surmises and conjectures. Hence the order of the Tribunal is clearly vitiated and is therefore liable to be quashed.

13. For the reasons stated above, this appeal is allowed, the order of the Learned Single Judge is set aside, the order of the Land Tribunal, Shimoga, dated 3-7-1976, (Exhibit-E to the Writ Petition) is hereby quashed and the case is remitted to the Land Tribunal with a direction to dispose of the same afresh after giving an opportunity to all the parties ofadducing evidence in support of their respective cases. No costs.


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