ORDER
1. By this petition the petitioner has prayed for issuance of a writ of certiorari under Articles 226 and 227 of the Constitution of India toquash the order dated 17-5-1996 passed by the 4th respondent-Tahsildar, Taluk Honnali.
2. The facts of the case in a nutshell are that the land in question were regranted in favour of B. Raghavendrachar, s/o Narasimhachar and others by the Assistant Commissioner, Shimoga Taluk, vide an order dated 10-3-1969. The lands which are granted in favour of (a) B. Narasimhachar were Sy. No. 60, extent 11 guntas; Sy. No. 52, extent 3 acres 24 guntas and Sy. No. 140, extent 3 acres 10 guntas as well as Sy. No. 126, extent 2 acres 20 guntas; (b) Hanumantha Rao, was granted the land in Sy. No. 52 extent 3 acres 23 guntas; Sy. No. 126, extent 2 acres 30 guntas and Sy. No. 140, extent 3 acres 15 guntas; and finally (c) B. Gururayachar the lands in Sy. No. 69 extent 31 guntas; Sy. No. 126 extent 2 acres 30 guntas and Sy. No. 140, extent 3 acres 39 guntas and Sy. No. 140, extent 3 acres 10 guntas. That the petitioner has asserted and alleged in the petition that he had purchased an extent of 4 acres of land from the grantees i.e., respondents 1 to 3, under an agreement to sell dated [5-9-1969] and has since then been in possession and by virtue of order dated 26-8-1977 the Land Tribunal under Karnataka Land Reforms Act, allowing the petitioner's claim confirming the occupancy rights in respect of aforesaid land vide Annexure-B i.e., order dated 26-8-1977.
3. An application was moved by the grantees that the present petitioner who was the respondent before the Tahsildar, was in unauthorised possession of the land and requested that this respondent i.e., present petitioner in the writ petition, be evicted from the said lands and the lands be restored by proceedings under Section 5(6) of the Karnataka Village Offices Abolition Act. The proceedings were initiated and enquiry was conducted. Written statement of the parties along with documents were entertained and after perusal of the records, the Tahsildar upheld the claim of the present respondents. The Tahsildar held that it is an admitted fact that Mariyamma Basappa was in possession of Sy. Nos. 52 and 126 as per agreement to sell dated 2-1-1960 till her death and thereafter Manjappa s/o Rudrappa has been in possession till date and it is also an admitted fact that B. Kenchappa s/o Nagappa as per agreement to sell dated 5-9-1965 has been in possession and cultivation of 4 acres of land of Sy. No. 140 and it is established that opposite parties before the Tahsildar were in possession under agreement to sell. It is further held that the land in Sy. Nos. 126, 52 and 140 were transferred subsequently by sale transactions vide deeds dated 25-6-1969 and 1-12-1969 within fifteen years from the date of regrant made on 10-3-1969, without depositing or paying occupancy at 21 times of land revenue as well as without previously by obtaining the permission or approval of Government. It held as such the agreement to sell dated 5-9-1965 is concerned benefit of regrant cannot be made available in view of Section 5(6) which says that such an agreement which have been entered into for sale before the regrant order under Section 5(6) of the Act, shall be null and void and any person in possession and occupa-tion of the lands under such agreement to sell shall be liable to be summarily evicted by the Deputy Commissioner. The Tahsildar has said that benefit of Section 5(6) of the Act will be available to applicant before it (present respondent) and the person who is in occupation under a null and void agreement of sale is liable to be evicted and therefore ordered eviction of the present petitioner vide its order dated 17-5-1996. Feeling aggrieved from that order the person in occupation of the lands in question i.e., Bhavera Kenchappa present petitioner, earlier filed appeal before District Judge and the District Judge dismissed the appeal as not maintainable by an order dated 30-6-1998 and thereafter the petitioner has come up before this Court by this petition under Articles 226 and 227 of the Constitution of India.
4. The respondent 1 in his counter affidavit has admitted and stated that 'it is admitted that the land comprised in Sy. Nos. 69 and 140 is service inam land and was regranted to holder of village office by Assistant Commissioner vide order dated 18-3-1969. It is further admitted that the petitioner purchased the said land under agreement to sale dated 5-9-1965 and was put in possession of the land bearing Sy. No. 140 on 5-9-1965 as per Annexure-R1 and ever since 1965 the petitioner is in possession of Sy. No. 140.
5. The learned Counsel for the petitioner contended that the petitioner is entitled to benefit of doctrine of estoppel feeding of grant as laid down in Lakshmana Gowda v State of Karnataka and Others , and as well as by the Full Bench. He further submitted that the view taken in Lakshmana Gowda's case, supra, is upheld by the Full Bench. He urged that transfer or transaction namely, agreement to sell dated [5-6-1969] had taken place after 1-2-1963 and before 7-8-1978 i.e., the date of Amending Act No. 13 of 1978 coming into force.
6. The learned Counsel for the respondents hotly contested this contention and submitted that the contentions are based on misreading the case and he submitted that Lakshmana Gowda's case, supra, does not support the petitioner's case. He further submitted that even if it is supported that stands against the views of their Lordships in the case of Taibai v Annasaheb Goudappa Patil .
7. I have applied my mind to these contentions. Section 2(1)(b) defines 'authorised holder' to mean a person in whose favour the land granted or continued in respect of, or annexed to, a Village Office by the State or a part thereof; has been validly alienated permanently whether by sale, gift, partition or otherwise under the existing law relating to such village offices. When we read Section 5(6) it has to be taken note of that under this section, it is very clearly provided that '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 andany person in possession thereof in furtherance of such agreement shall be summarily evicted therefrom by the Deputy Commissioner'. The context not being contrary, the definition given of authorised holder cannot include the person who has entered into the land under an agreement to sell entered prior to regrant, and the mandate of law is that such a person shall be evicted summarily by the Deputy Commissioner. From the perusal of the decision in Lakshmana Gowda's case, supra, I do not find that there was a case to which Section 5(6) could be said to be attracted and in all probabilities that section may not apply for case of alienation. When I so observe, I find support from the Division Bench view of this Court in the case of Gopalappa v Secretary to Government of Karnataka and Others , their Lordships observed thus.-
'The clear distinguishing feature between the facts of the case and the facts considered by the Division Bench, in Lakshmana Gowda's case, supra, is that was 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 case, there is no dispute that the lands in respect of which the petitioners entered into an agreement of sale were those resumed under clause (3) of Section 4. There is also no dispute that the agreements were entered into before the regrant under Section 4(1). Therefore, the agreements become null and void the moment subsection (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. In the case of Taibai, supra, their Lordships of Supreme Court dealt with the question and laid down in para 6 after having referred to Section 5(6) of the Act, thus.-
'There is, therefore, a clear bar on any agreement for transfer of land being made by the prospective patta holder prior to regrant. Section 5(6) provides that if any such agreement is entered into, it shall be null and void and any person in possession in pursuance of such an agreement is liable to be summarily evicted as providedtherein. The agreement of sale, therefore, which was entered into at the time when the seller did not have any title to the land, will have no legal effect nor the provisions of Section 53-A of the Transfer of Property Act be attracted in such a case. In the case of Lakshmana Gowda, supra, the Karnataka High Court had considered some of the provisions of the principal Act before its amendment, particularly Section 5(3) and some provisions of the Amending Act of 1978. It has not dealt with the amended Section 5(6)'.
Their Lordships further observed thus.-
'In dealing with transfers made after coming into force of the principal Act, but before its amendment, the Court said that since Section 5(3) before its amendment permitted transfers of regranted land with the sanction of the Deputy Commissioner, the transfer made prior to the regrant which was imperfect as the seller had no right over the land, would be perfected by acquiring such a right on regrant. This reasoning cannot apply to a case where the transaction prior to regrant is wholly null and void nor can it apply to a case where transfer after regrant is prohibited, as under the amended Section 5(3). Section 5(6) of the said Act which is introduced under the Amending Act, 1978, clearly provides that an agreement to transfer which is entered into prior to regrant is null and void. Nor can a transfer be effected pursuance to such an agreement after 7-8-1978'.
9. It is to be taken note that sub-section (4) or (6) to Section 5 of the Act have been inserted by Section 3(2) of Karnataka Village Offices Abolition (Amendment) Act (Act No. 13 of 1978), sub-section (2) of Section 3 of Karnataka Act No. 13 of 1978 provides and speaks that 'After sub-section (3) following sub-sections shall be and shall be deemed always to have been inserted in Section 5 of the principal Act. Act No. 13 of 1978 provides and speaks that 'after sub-section (3) following sub-sections shall be and shall be deemed always to have been inserted' in Section 5 of the principal Act. That dealing with the legal fiction and the effect of deeming clause, in the case of M. Venugopal v The Divisional Manager, Life Insurance Corporation of India, Machilipatnam, Andhra Pradesh and Another , their Lordship of Supreme Court has laid it down as under.-
'The effect of a deeming clause is well-known, legislature can introduce a statutory legal fiction and Courts have to proceed on the assumption that such state of affairs exists on the relevant date. In this connection, one is often reminded of what has been said by Lord Asquith in the case of East End Dwellings Company Limited v Finsbury Borough Council , that when one is bidden to treat an imaginary state of affairs as real, he must surely, unless prohibited from doing so, also imagine as real the consequencesand incidents which, inevitably have flowed from, one must not permit his 'imagination to boggle' when it comes to the inevitable corollaries of that state of affairs'.
Their Lordships of Hon'ble Supreme Court in the case of G. Viswanathan v The Hon'ble Speaker, Tamil Nadu Legislative Assembly, Madras and Another, at para 8(9) laid the same principles as to the effect of deeming clauses and referred to the above decisions. Thus keeping the above principles in view, I am of the opinion that by virtue of the legal fiction incorporated in Section 3(2) of Amending Act by use of expression 'shall be deemed always to have been inserted' the legislature has clearly provided that sub-sections (4) to (6) shall have to be taken to have always been there in Section 5 of the principal Act, since the enforcement of Karnataka Village Offices Abolition Act, i.e., with effect from 1-2-1963. Sub-sections (4) to (6) having been introduced retrospectively the provisions of sub-sections (4) and (6) of Section 5 did apply to alleged agreement to sell as well as to sales effected, did render that void from inception and transaction which is void and null. The provisions of Section 43 of Transfer of Property Act, which provides for estoppel feeding the grant does not apply as it applies to a contract which is otherwise valid, but is the result of fraudulent or erroneous representation as rights of transferor to transfer the property. Here in view of sub-sections (4) to (6) of Section 5 of the Act having been inserted retrospectively by use of expression 'shall be deemed to have always been inserted' in sub-section (2) of Section 3 of Amending Act No. 13 of 1978, the transaction of sale or agreement to sell dated 5-9-1969 have been null and void. So petitioner is not entitled to the benefit of Section 43 of Transfer of Property Act, in view of law laid down by the Supreme Court in Ram Bhawan Singh and Others v Jagdish and Others, and Kartar Singh (dead) by L.Rs and Others v Smt. Harbans Kaur.
10. Thus considered, in my opinion, the Tahsildar was justified in opining that under the agreement to sell the petitioner had no right to remain in possession even if any transfer pursuant to such agreement was made, subsequent to the grant.
11. In my opinion, the Tahsildar's view that an agreements executed by a person having no right are neither legal and fruitful view of provisions of Section 5(4) and 5(6) of the Act and Section 53-A of the Transfer of Property Act, was not applicable.
12. The learned Counsel for the petitioner contended very vehemently that the Tahsildar had already granted the tenancy right vide order dated 26-8-1977 and act illegally in relying on the decision of their Lordships of Supreme Court in the case of Kiran Singh and Others v Chaman Paswan and Others and on ILR 1989 Kar. 713. While passingthe order dated 17-5-1996 in the petition not otherwise, it had not been indicated as to why and for what reasons these decisions were not applicable to present case. That application for grant of occupancy rights was moved by the petitioner and it had been rejected by the Tahsildar by an order dated 18-7-1977 in LRF case No. 12 of 1974 in respect of land bearing Sy. Nos. 69 and 140, thereafter the order dated 26-8-1977 somehow had been got passed on 26-8-1977 on a second application. What was the reason behind it was not clear. How second application was entertained is not clear. The Assistant Commissioner relied on a Division Bench decision of this Court in the case of Shingappa Gowda H.B. v Land Reforms Tribunal, Sringeri and Others, and it had opined that the Tahsildar has no power to review nor had any power to entertain second application from same applicant for grant of occupancy rights when earlier one was dismissed or not pressed. It also further opined that the Tahsildar had no jurisdiction to entertain the second application and held that the order on second application is null and void without jurisdiction. The position of law as contemplated in the aforesaid decision was that the Tahsildar could not entertain second application. When the petition was drafted as well as where arguments were being heard, I am sorry to mention that in the writ petition the petitioner has not disclosed and stated that the earlier application for grant of occupancy rights was rejected and it was in that connection the Court was relied upon Supreme Court case and of this Court, and then it was held that second application was not maintainable.
13. The fact that the earlier application for grant of occupancy right was rejected, was a material fact to have been brought on retired by the petitioner in this writ petition, and it is the duty of the learned Counsel for the petitioner to mention it in the petition. When the earlier application had been rejected particularly by an order dated 28-7-1977 on merits the Tahsildar has no jurisdiction to pass the second order and entertain the second application. When the Tahsildar had no jurisdiction to entertain and pass any order on the second application, the order passed in the present case on 26-8-1977 is null and void. That order dated 17-5-1996 as such can be said to suffer from any error jurisdictional or otherwise.
14. Further, I am of the view that when the petitioner has conceded material fact of the earlier order dated 19-7-1977 whereby the petitioner's claim of tenancy rights had been rejected, this writ petition is also liable to be dismissed apart from merit on this additional ground of concealment of material fact as well.
15. Thus considered the present writ petition is accordingly dismissed as being without any merits, with costs assessed at Rs. 1,500/- to be deposited in this Court and to be allotted to Legal Authority, Karnataka (Legal Aid Board).