Judgment:
(Prayer: This Writ Petition is filed under Articles 226 and 227 of the Constitution of India, praying to quash the order dated 23.10.2010 in M.A.No.13/2007 passed by the learned judge of Fast Track Court – IV, Bangalore Rural District, produced at Annexure-A to the Writ Petition.)
1. The petition coming on for orders on the application seeking vacating the order of stay, the petition is heard for final disposal.
2. The facts of the case are as follows:-
One Nagaiah was the Barawardar of Talavari Office and was entitled for grant of land on the abolition of Village Offices under the provisions of the Karnataka Village Offices Abolition Act, 1961 (Hereinafter referred to as ‘the KVOA Act’, for brevity). He was granted land in Survey No.33 measuring 5 acres 30 guntas and the land in Survey No.20 measuring 21 guntas of Thimmegowdana Hosahalli, Devanahalli Taluk, Bangalore Rural District. Nagaiah had three sons, Thimmarayappa, Giddappa and Byrappa. The genealogy of Nagaiah is as under:-
Nagaiah Talware
Thimmarayappa Giddappa Byrappa
(No issues)
Doddaiah Giddappa
(Dead) (No issues)
(wife dead) Muninarasamma Gundamma
(wife)
Muddarayappa Ankkonappa
(No issues)
In the year 1989, his legal representatives namely, Giddappa, his grandson and Ankonappa, his great grand son and Gundamma, his grand-daughter had filed applications for regrant of occupancy rights under Section 5 of the KVOA Act. Muninarasamma, the daughter of Giddappa was not a co-applicant and she is the petitioner herein. It is her complaint that the same was suppressed by the applicants. However, the Tahsildar had regranted the lands treating the applicants as hissedars in respect of the inam lands, as the family had not partitioned the property by metes and bounds. It was the case of the petitioner that she had been deprived of her legitimate share in the said property. Therefore, she had challenged the same in an appeal in M.A.No.57/1995 before the appellate authority. The land in question was converted from agricultural use to non-agricultural use in November 1995. During the pendency of the appeal, respondents 4 and 5 are said to have sold the land in favour of one M/s Scotts India Private Limited during the year 1997. On 11.8.1997, the appeal filed by the petitioner was allowed and the order of regrant made in favour of respondents 4 and 5 was set aside and the matter was remanded for consideration by the Tahsildar.
On 1.6.2004, M/s Scott India Private Limited is said to have sold the property in favour of respondent no.2 notwithstanding the circumstance that the regrant made in favour of respondents 4 and 5 had been set aside and any transfer made by the said respondent in favour of M/s Scott India Private Limited would also stand nullified in the eye of law. The petitioners, therefore, filed a civil suit in O.S.No.543/2008 before the Court of the Civil Judge, Devanahalli questioning the sale by M/s Scott India Private Limited. On a reconsideration of the applications for regrant, along with the claim of the petitioners, the Tahsildar, on 5.2.2007, passed an order of regrant in favour of the petitioners and respondents 4 and 5 granting them equal shares in the land in question. On 26.2.2007, a Joint Development Agreement is said to have been executed by respondent no.2 and respondent no.6, including the petitioner’s share of land within the scope of the agreement. The petitioners, therefore, contend that the sale deed executed by M/s Scott India Private Limited is after the order of regrant was set aside. Similarly, the Joint Development Agreement is executed after the order of regrant was set aside in MA 57/1995 and after the grant made in favour of the petitioner.
Respondent no.2 had challenged the order of regrant made in favour of the petitioners on the contention that they had purchased the lands in question under a sale deed dated 30.1.1995 executed by respondents 4 and 5 and therefore, without hearing the said respondent, the order of regrant having been made, negating the sale transaction was bad in law. That appeal numbered as MA 13/2007 was allowed by an order dated 23.10.2010, on the further ground raised to the effect that respondent no.2 had purchased the land after it was converted for non-agricultural purposes and after the period of non-alienation imposed under the order of regrant made earlier. It is that which is sought to be challenged in the present petition.
3. The learned counsel for the petitioners contends that the short question that would arise for consideration in the present writ petition is whether respondent no.2 had locus standi to challenge the order of regrant made in favour of the petitioner and respondents 4 and 5. He would submit that admittedly, the sale deed in favour of respondent no.2 was after the order of grant was set aside in appeal in MA 57/1995. Therefore, respondent no.2 had no right or interest, as the sale deed, if any, in respect of the land in question was rendered a nullity. It is further pointed out that the second sale by M/s Scott India Private Limited in favour of respondent no.2 was made after the regrant order dated 11.10.1990 was set aside in appeal as on 11.8.1997. Therefore, respondents 4 and 5 did not have any exclusive right to convey the property and any title derived by respondent no.2 under the sale deed was imperfect and invalid. Hence, respondent no.2 would have no vested right to prefer an appeal to challenge the order of regrant. Yet another reason o hold that the sale deed was null and void is in view of the public declared by the Government of Karnataka, as per Notification dated 14.2.1994, wherein it was declared that any registration of a sale deed in violation of the KVOA Act was declared to be void. Therefore, the sale deed executed in favour of respondent no.2 by M/s Scott India Private Limited was void. It is also contended that in effect, the regrant order, made in favour of the petitioner along with respondents 4 and 5, is the regrant order which is validity made, as any earlier regrant was invalid for non-joinder of the petitioner and therefore, the non-alienation period would run from the date the order of regrant is made in favour of the petitioner and respondents 4 and 5, namely, 5.2.2007 and therefore, the sale would also run counter to the prohibition of non-alienation for a period of 15 years from the date of regrant. For all the above reasons, the appeal was not maintainable as respondent no.2 had no locus standi to question the order of regrant made.
It is contended that in the light of the admission made by respondents 4 and 5 as to the non-inclusion of the petitioner in the first instance is no longer in dispute and hence, the order of remand is a futile exercise, as the claim of the petitioner cannot be denied. The learned counsel would submit that the order of remand is therefore liable to be quashed.
4. The learned Senior Advocate Shri P.S. Rajagopal appearing for the counsel for Respondent No.6 would contend that the present petition is liable to be dismissed for the following reasons:
Firstly, that the impugned order is an order of remand and hence does not cause any prejudice to the petitioner. Secondly, the petitioner had earlier approached this court in a writ petition in WP 23216/2010, questioning the sanction of plan in respect of intended construction and development of the subject property by the second respondent herein who was also the second respondent in that petition. The said petition having been dismissed by an order dated 10-8-2011, there was a categorical finding that the regrant order dated 9-10-1980 does not lose its relevance unless the finality attainted by it is nullified. It was also observed that the petitioner having instituted a comprehensive civil suit in O.S.No.543/2008, in the Court of the Civil Judge (Senior Division), Devanahalli, challenging the sale deeds in favour of the vendor of the second respondent as well as the sale deed in favour of the second respondent, the petitioner should await the result of the said suit to negate the sale transactions of the year 1997 and 2004, which were executed well beyond the non-alienation period prescribed under the Act.
Thirdly, it is contended that the case law is loaded in favour of the second respondent and reliance is placed on several authorities.
5. In the light of the above contentions – the only point that arises for consideration is whether or not the second respondent, at whose instance an order of remand has been made in an appeal filed by it, had locus standi to seek such relief.
On facts, it is not in dispute that the said respondent was a subsequent purchaser of the property in question. Further, it is also not in dispute that apart from the petitioner other members of the petitioner’s family, who were the original vendors, had the benefit of the order of regrant along with the petitioner, which has now been set aside and the matter remanded.
Reference may be made to the judgment of the apex court in the case of Maharaj Singh v. State of U.P. (1977) 1 SCC 155, wherein it is held thus:
“20. The classical concept of a ‘person aggrieved’ is delineated in Re Sidebotham ex p. Sidebotham. But the amplitude of ‘legal grievance’ has broadened with social compulsions. The State undertakes today activities whose beneficiaries may be the general community even though the legal right to the undertaking may not vest in the community. The State starts welfare projects whose effective implementation may call for collective action from the protected group or any member of them. New movements like consumerism, new people’s organs like harijan or mahila samajams or labour unions, new protective institutions like legal aid societies operate on the socio-legal plane, not to beat ‘their golden wings in the void’ but to intervene on behalf of the weaker classes. Such burgeoning of collective social action has, in turn, generated gradual processual adaptations. Test suits, class actions and representative litigation are the beginning and the horizon is expanding, with persons and organisations not personally injured, but vicariously concerned being entitled to invoke the jurisdiction of the court for redressal of actual or imminent wrongs.
21. In this wider perspective, who is a ‘person aggrieved’? Dhabolkar gives the updated answer:
The test is whether the words ‘person aggrieved’ include a person who has a genuine grievance because an order has been made which prejudicially affects his interest’. (p.315).
American jurisprudence has recognized, for instance, the expanding importance of consumer protection in the economic system and permitted consumer organisations to initiate or intervene in actions, although by the narrow rule of ‘locus standi’, such a course could not have been justified (See P.807 – New York University Law Review, Vol.46, 1971). In fact, citizen organisations have recently been campaigning for using legal actions for protection of community interest, broadening the scope of ‘standing’ in legal proceedings (see p.403 – Boston University Law Review, Vol.51.1971). In the well-known case of Attorney-General of the Gambia v. Peirra Sarr N. ‘Jie 1961 A.C.617), Lord Denning observed about the Attorney-General’s standing thus:
“…The words ‘person aggrieved’ are of wide import and should not be subjected to a restrictive interpretation. They do not include, of course, a mere busy body who is interfering in things which do not concern him; but they do include a person who has a genuine grievance because an order has been made which prejudicially affects his interests.” (p.324-325)”.
Therefore, in the facts of the case on hand, it can be said that the second respondent, who is said to be the purchaser in possession of the land, is certainly a person aggrieved who was entitled to invoke the jurisdiction of the appellate authority.
Further, it is also to be noticed that the petitioner cannot be said to be aggrieved by the order of regrant in favour of the other members of her family who are said to be the vendors of the property who had conveyed the property in favour of the vendor who had in turn conveyed the property in favour of the second respondent. The said circumstance would also enable the second respondent to claim a vested interest on the principle of feeding the grant by estoppel. In this regard the decision of the apex Court in the case of Renu Devi v. Mahendra Singh, (2003) 10 SCC 200, may be referred to. The principle is discussed thus:
“13. The rule of feeding the estoppel, as recognized in English law and set out in Rajapakse v. Fernando (1920) AC 892, 897 is, ‘where a grantor has purported to grant an interest in land which he did not at the time possess, but subsequently acquires, the benefit of his subsequent acquisition, goes automatically to the earlier grantee, or as it is usually expressed, feeds the estoppel.’ Mulla states in the work on Transfer of Property Act (Ninth Edition, 2000 at p.310). The Principle is based partly on the common law doctrine of estoppel by deed and partly on the equitable doctrine that a man who has promised more than he can perform must make good his contract when he acquires the power of performance. In Tilakdhari Lal v. Khedan Lal, Lord Buckmaster stated the rule of estoppel by deed as follows- “If a man who has no title whatever property grants it by a conveyance which in form would carry the legal estate, and he subsequently acquires an interest sufficient to satisfy the grant, the estate, the instantly passes”.
14. Though there is some doubt expressed by Indian scholars and authorities if the common law doctrine of ‘the estate instantly passes’ is applicable in India but there is no doubt that the doctrine of feeding the estoppel applies in India. The rule is that if a man, who has no title whatever to the property, grants it by a conveyance which in form carries the legal estate, and he subsequently acquires an interest sufficiently to satisfy the grant, the estate instantly passes. (See: Mulla, ibid.p.312). Equity treats that as done which ought to be done. The doctrine may not apply if the deed of transfer itself was invalid or if the third party has acquired title bona fide, for consideration and without notice.”
In the light of the above legal position the writ petition stands dismissed.