Venkataraman, J
1. This Appeal is filed by the second defendant in O.S.203/67 on the file of the I Addl.Munsiff, Kumta, against the judgment and decree passed by the learned Civil Judge, Karwar, in R.A.94/73 dismissing his appeal.
2. Certain undisputed facts are as hereunder; One Syed Idrus syed Ali Khazi, the original plaintiff in the suit, was the owner of Survey No. 21 of Haritha village in Kumta Taluk. Then the Government assumed the management of this land by order dated 26.3.1951 under Section 65 of the Bombay Tenancy and Agricultural Lands Act (for short 'BT & AL Act') on the ground that it was lying fallow. The Tahsildar, Kumta was appointed as manager and he leased the land in favour of the second defendant (present appellant) for a period of 10 years from 7.4.1951. The Tahsildar declined to extend the lease period beyond 31.3.1961 and he directed the second defendant to handover possession to the owner. In an appeal filed by the second defendant the Assistant Commissioner set aside the order of the Tahsildar and continued the lease in favour of the second appellant for a further period of 5 years from 31.3.1961. Though the plaintiff challenged that order before the Revenue Appellate Tribunal the revision was rejected by the Tribunal on the ground of jurisdiction. The plaintiff issued a notice under Section 80 C.P.C. to the Deputy Commissioner questioning the validity of the order of extension of lease and demanding that he should be put in possession of the land. However, after the expiry of that period of 5 years the Assistant Commissioner passed another order on 31.12.66 renewing the lease for further period of 10 years from 1966-67. The plaintiff then filed the suit out of which this Appeal arises for a declaration that the order of the Assistant Commissioner dated 31.12.1966 was void and without jurisdiction and for possession of the suit land along with mesne profits.
3. The State Government which was the first defendant contested the suit and denied that the order of the Assistant Commissioner was illegal. It was also contended that the suit was not maintainable in the Civil Court, that it is barred under the provisions of the BT & AL Act, that unless there was termination of the management the plaintiff was not entitled to seek for possession of the land. It was also contended that the suit was bad for non-issue of notice under Section 80 CPC.
4. The second defendant also contested the suit and asserted that there was no relationship between him and the plaintiff and that he was entitled to continue as a tenant so long as the management was subsisting and that he was not liable to deliver possession of the suit land.
5. The trial Court held that the order of the Assistant Commissioner extending the lease for a period of 10 years from 1966-67 was without jurisdiction as by that date BT & AL Act had been repealed and there was no corresponding provision in the Land Reforms Act under which he could continue the lease. He further held that the plaintiff was entitled to get back possession of his land and that the suit was maintainable. The Court also held that there was no need for the plaintiff to issue a fresh notice under Section 80 CPC apart from the one which he had earlier issued. On these findings he granted the decree for declaration and possession of the suit land.
6. The Government did not challenge the judgment and decree of the trial Court. However, second defendant challenged that judgment and decree before the learned Civil Judge who concurred with the findings of the trial Court and dismissed the appeal.
7. This appeal has been admitted to consider the following Substantial Questions of Law:
'1. Whether the Assistant Commissioner had jurisdiction to grant further lease for 10 years even after the repeal of B.T. & A.L. Act after coming into force of the Karnataka Land Reforms Act, 1961, and whether Section 84 of the K.L.R. Act could be paid to be analogous to Section 65 of the B.T. & A.L. Act and hence action taken under Section 65 on 31.12.66 under B.T. & A.L Act could be deemed as action taken under Section 84 of the K.L.R. Act?
2. Whether the appellant could take defence that notice to Government was not legal and valid when the Government has not challenged the decree of the Court below and if it can whether notice under Section 80 CPC was not issued when the cause of action arose on 31.12.66 and hence the suit itself is not maintainable?'
8. It is not disputed that when the Assistant Commissioner passed the order on 31.12.66 granting a further lease of 10 years from 1966-67, Karnataka Land Reforms Act ('the Act' for short) had come into force and BT & AL Act had stood repealed. As such it is obvious that the Assistant Commissioner could not have passed any order in exercise of the powers under the provisions of the BT & AL Act. Under Section 142 of the Act though the previous operation of the repealed Act or any act duly done under such Act is saved, it does not enable the authorities to do any act under the provisions of the repealed Act after the coming into force of the Act. Even the learned Counsel for the appellant did not seek to contend that the Assistant Commissioner could have granted the lease under the provisions of the BT & AL Act after the Act came into force. We have to see whether the Assistant Commissioner had jurisdiction to pass that order under the provisions of the Act. For this purpose it would be better to refer to the relevant provisions in BT & AL Act and the Act. Section 65 of the BT & AL Act provides that if any land has remained uncultivated for any 2 consecutive years or if any land has not been fully made use of for agricultural purposes by the default of the land holder, the State Government, may after making such enquiry as it thinks fit, declare that the management of such land shall be assumed and such declaration shall be conclusive. Sub-section (2) of that Section stipulates that on assumption of such management the land shall vest in the State Government during the continuance of the management. There is also a provision to grant lease of the land.
9. Rule 35 of the BT and AL Rules stipulates that the manager of an estate of which management has been assumed shall send a report to the State Government regarding the management before 31st day of March following the year in which the management was assumed and give his opinion as to whether it is necessary to continue the management and that the State Government, on receipt of such report, shall decide whether the management should be terminated under Section 61 or continued and if it decides to continue the management the period shall not exceed 5 years at a time. Sub-rule (3) of Rule 35 stipulates that if the management has to be continued beyond the expiry of 10 years from the date on which it was assumed, Collector should hold a formal enquiry and submit the record and proceedings of the enquiry and his report to the State Government which should then decide whether the management should be continued any further.
10. The corresponding provisions in the Act are Sections 84 and 85. Section 84 provides that if any land has remained uncultivated for a period of not less than 2 consecutive years without sufficient cause the Assistant Commissioner shall issue a notice upon the land owner or other person entitled to be in possession requiring him to cultivate the land within one year. Section 85 empowers the Assistant Commissioner to lease out such land if the same is not cultivated within one year from the date of service of notice under Section 84 to any suitable lessee for a period not exceeding 5 years.
11. It is seen that there is no provision for assuming management of any land under the Act similar to the provisions of Section 65 of the BT & AL Act. While under the BT & AL Act the management may be continued for a period of 10 years and even beyond that period if the State Government decides under the provisions of the Act the uncultivated land could be leased by the Assistant Commissioner for a maximum period of 5 years. While under the BT and AL Act the land, the management of which is assumed, vests in the Government for the purpose of management, there is no such provision in the Act. It is therefore patent that Sections 84 and 85 of the Act are not in any way analogous to the provisions of Section 65 of the BT & AL Act. It may be noted that under Section 85 of the Act an Assistant Commissioner can grant lease of a land which remains uncultivated only after one year from the date of service of notice under Section 84. Under these provisions an Assistant Commissioner cannot grant lease of a land the management of which has been assumed under Section 65 of the BT & AL Act. There is no provision in the Act which empowers the Assistant Commissioner to grant a lease of such land. It may be seen that even under the provisions of the BT & AL Act and Rules it is only the State Government which had the jurisdiction to continue the management for a period more than 10 years and that too after getting a report from the Collector in that regard. In the present case there was no order by the Government to continue the management after the period of 10 years. The Assistant Commissioner could continue the lease only in a case where the management itself had been continued. As such as on 31.12.76 when the impugned order was passed the Assistant Commissioner could not have continued the lease for 10 more years even under the provisions of the BT & AL Act and Rules. As on that date BT & AL Act and Rules stood repealed and as there is no provision under the Act empowering the Assistant Commissioner to grant the lease in question, the finding of the Courts below that that order of the Assistant Commissioner granting lease to the second defendant for a further period of 10 years was without jurisdiction and void is correct.
12. The fact that the second defendant who obtained the lease of the land from the Assistant Commissioner in pursuance of the assumption of management under Section 65 of the BT & AL Act is not entitled to the protection of the tenancy laws is now well settled by the Decision of this Court as well as a Decision of the Supreme Court. In HANUMANTHA DURGA NAIK v. STATE OF KARNATAKA AND ORS. 1988 (3) KLJ Supp. 294, it has been held that on the assumption of the management of the land it stood vested in the State by virtue of Sub-section (2) of Section 65 of the BT & AL Act and that during the continuation of such management the other provisions of the BT & AL Act were not applicable for the lease created in respect of the land. In DHONDU UNDRU CHOUDHARY v. GANPAT LAL SHANKAR LAL AGARWAL : [1991]1SCR81 , it has been held that a tenant to whom lease in respect of the land assumed for management was granted could by no means continue to be a tenant after his lease period expired and no fresh lease was granted to him. As such when once the period of lease which was granted to the second defendant came to an end in 1966 and when it is found that the further lease granted in 1966 was void and without jurisdiction he cannot claim to have any right to continue in possession of the land.
13. The learned Counsel for the appellant-second defendant contended that it is only the revenue authorities who have to take action to obtain possession from him, that as the management has still not been terminated the plaintiff has no right to seek for possession of the land, that if at all his right to get back possession under the provisions of the BT & AL Act is saved under Section 142 of the Act and he has to therefore initiate proceedings before the Assistant Commissioner to get back possession and that the present suit in the Civil Court is not maintainable. According to him it is only the authorities under the BT & AL Act who have to initiate proceedings to put the plaintiff in possession of the land after evicting the second defendant and the suit as brought for possession is not maintainable.
14. Section 61 of the BT & AL act reads as hereunder:
'The State Government, when it is of opinion that it is not necessary to continue the management of the estate, by order published in the Official Gazette direct that the said management shall be terminated. On the termination of the said management, the estate shall be delivered into the possession of the holder, or, if he is dead, of any person entitled to the said estate together with any balances which may be due to the credit of the said holder. All acts done or purporting to be done by the Manager during the continuance of the management of the estate shall be binding on the holder or to any person to whom the possession of the estate has been delivered.'
A reading of the above provision shows that that the notification terminating the management has to be issued when the management can be further continued. If the power to continue the management has come to an end by repeal of the law which gave that power, then the question of passing an order terminating the management does not arise. In this case after the expiry of the period for which the management of the land had been lawfully assumed or continued, there being no power under law to continue that management, it necessarily came to an end and there was no need to terminate the management. In effect there has been termination of the management by operation of law. When the BT & AL Act was repealed even the power to issue the notification under Section 61 came to an end. As such in this case the contention that the plaintiff would not be entitled to get back his property till a notification under Section 61 is issued cannot be accepted.
15. The learned Counsel for the appellant-second defendant pointed out that that the land vested in the Government under Section 65(2) of the BT & AL Act and that unless the notification under Section 61 is issued the property would continue to vest in the Government. Though under Section 65(2) the land came to be vested in Government on assumption of management, that vesting was only for purposes of management and it is effective during the continuance of management The holder of the land does not lose his title to the land by virtue of the assumption of the management. Section 66 of the BT & AL Act provides for acquisition of an estate or land under management. Sub-section (7) of that Section states that when the Collector has made an award, the estate, the land, interest therein shall vest in the State Government free from all encumbrances. This clearly shows that it is only when the land which is under management is acquired under Section 66 and an award is passed, the title vests in the Government.
16. In STATE OF BOMBAY v. THE ESTATE INVESTMENT CO. LTD., BOMBAY, 1958 Bombay Law Reporter 660 the Bombay High Court has considered the effect of the provisions of Sections 44 and 45 of the BT & AL Act which deal with the assumption of management of a land when the State Government is satisfied that on account of negligence of the land holder or on account of the disputes, the cultivation of the estate has seriously suffered. Those provisions also contain a provision similar to Section 65(2) with regard to the vesting of the land, the management of which has been assumed. It may be noted that in respect of the assumption of management of land under Section 65 the provisions of Chapter IV which deals with the assumption of management under Sections 44 and 45 are made applicable mutatis mutandis. The Bombay High Court, after considering all the relevant provisions of Chapter IV, has held that the ownership of lands taken under management does not vest in the State Government and that the only thing that vests in the Government is the right to possession and of management together with all powers for the purposes of such management which the landholder, but for the notification issued under Section 44 of the Act could have exercised.
17. In view of the above legal position the contention that the title to the land itself would vest in the Government under Section 65(2) or that unless a notification is issued under Section 61, the landholder cannot get back his title and cannot ask for possession of the land, does not merit acceptance. When once the management has come to an end by operation of law the landholder is entitled to get back possession of the land from the Government as well as the second defendant who no longer has any right to hold the land.
18. We have to next see whether there is any legal bar for a suit being filed for possession by the landholder in a Civil Court. The bar under Section 132 of the Karnataka Land Revenue Act is not applicable as none of the authorities mentioned therein is required under the provisions of that Act to decide and deal with a claim by the landholder to get back possession of the land, management of which was assumed under Section 61 of the BT & AL Act and which has come to an end.
19. The learned Counsel for the appellant referred to Section 85(1) of the BT & AL Act which deals with bar of jurisdiction. According to him, by virtue of Section 142 of the Land Reforms Act the right of the plaintiff to get back possession of the land after cessation of management is saved and he can institute proceedings as if the Land Reforms Act had not been passed. He therefore submitted that the plaintiff had to approach Mamalatdar to get back possession of the land.
20. Section 142 of the Land Reforms Act saves any right or privilege acquired or accrued to any one under the repealed enactments and such a person who wants to enforce such right or privilege can do so as if those Acts had not been repealed. In the instant case, the plaintiff is seeking to enforce his right to possession as owner of the land not by virtue of the provisions of the BT & AL Act. His right to possession was inherent in his title and he became entitled to get back possession because of the repeal of BT & AL Act and consequential cessation of management by the Government. As such the right to claim possession has accrued to the plaintiff not under the provisions of the BT & AL Act but by its repeal. As such Section 142 of the Land Reforms Act will not come into play in this case. In a case of this type the jurisdiction of the Civil Court cannot be held to be barred either under Section 85 of the BT & AL Act, as it is no longer in force, or by Section 132 of the Karnataka Land Reforms Act.
21. The learned Counsel for the appellant contended that no valid notice under Section 80 CPC had been issued to the Government and that as such the suit is barred. The object of issue of a notice under Section 80 CPC is to give the Government or the public officer concerned an opportunity to reconsider the legal position and to make amends and to settle the claims, if so advised, without litigation. As such the objection regarding want of notice under Section 80 CPC is available only to the Government or the public officer and not to a third party. It is well settled that the Government can waive this notice. In this case the trial Court has held that the notice issued by the plaintiff amounts to notice under Section 80 CPC. The Government has not challenged the judgment and decree of the trial Court. As such it must be held that the Government has accepted the finding of the trial Court that notice under Section 80 CPC had been issued to it. It is not open to the second defendant-appellant either to challenge that finding or contend that the suit is barred under Section 80 CPC for want of a valid notice.
22. After considering the grounds urged by the learned Counsel for the second defendant-appellant, I do not find any good ground to interfere with the judgment and decree passed by the Courts below. The Appeal is therefore dismissed with costs.