Honagouda Thirtha Gouda Patil Vs. Akkatai - Court Judgment

Excerpt:
karnataka village offices abolition act, 1961 (karnataka act no. 14 of 1961) as amended by act no.13 of 1978 & act no. 27 of 1984 - section 5(3) - amendment: object and effect - to prevent unauthorised transfer of lands, from 7-8-1978 - right to sell accrued or acquired earlier not saved, but lost - provision to sell again introduced by 1984 act, from 4-5-1984; fresh permission not obtained, sale in exercise of right lost by amendment, alienations null and void.; question for consideration; ;whether after coming into force of the amended provision of sub-section (3) of section 5 with effect from 7-8-1978, the grantee was entitled to sell the lands pursuant to the permission granted earlier to the amendment? ;the amendment act was aimed at preventing the lands from being transferred unauthorisedly and evicting persons found to be in unauthorised occupation of such lands. with that intention behind, the legislature did not bring in any clause in the amendment act saving the right accrued or acquired under the unamended section....since the right that is accrued to bharmabai by virtue of the order made by the assistant commissioner under sub-section (3) of section 5 of the principal act has not been saved in the repealing act, to that extent, that right is lost, inasmuch as she could have exercised that right any time before the amendment of the provisions under which she got the right...under the amendment act, there was no provision for permission to alienate the lands resumed under sub-section (3) of section 4 of the act. however, similar prevision as is found in sub-section (3) of section 5 of the principal act has again been brought to the statute book by karnataka act no. 27 of 1984 which came into force on 4-5-1984 by which a proviso to sub-section (3) of section 5 has been inserted...bharmabai did not make any efforts to obtain fresh permission under this proviso. instead, she sold the lands in exercise of the right, which was already lost by that time, conferred on her under the permission granted under the principal act...the alienations made by bharmabai are without the authority of law and hence they are liable to be declared as null and void. - mysore (religious and charitable) inams abolition act, (act no. 80/1955) sections 6-a & 9: [subhash b. adi, j] grant of occupancy right in respect of religious and charitable inam land vesting in state rival claims for grant of occupancy in respect of tribunal conferring occupancy rights on person claiming to be archak of institution, on basis of application made by his brother, and rejecting rivals claim as tenant of land without recording its finding on issues relevant for decision - held, order is not sustainable. matter was remanded to tribunal for fresh decision after recording its finding whether person on whom occupancy right has been confirmed was really serving institution as archak and whether he was personally cultivating land for continuous period of not less than three years prior to date of vesting of land in state (i.e., 1.7.1970) to be eligible for grant of occupancy. - he further contended that unfortunately the authorities below failed to apply their mind to the legal aspects when they rejected the prayer of the petitioner because as on 2-6-1980 and 20-6-1984 when she sold the land to respondents 1 and 3 respectively, she had no right to do so. therefore, we will have to fail back upon the bare provision provided in the above section. but they have failed to do so.orderm. ramakrishna, j. 1. on 6-9-1991 the court made an order in the absence of the learned counsel on both sides. later, the learned counsel on both sides appeared and requested to recall the said order and to hear them. hence, this writ petition is coming again before court.2. i heard learned counsel on both sides. the order made by this court on 6-9-1991 is recalled.3. brief facts of the case necessary for the disposal of this writ petition are as follows:-3 acres 25 guntas in sy.no. 6/2 and 1 acre 34 guntas in sy.no. 6/3 situated in bhjradi village, raibag taluk, belgaum district, are admittedly patilki inam lands: therefore, the karnataka village offices abolition act, 1961 ('the act' for short) is attracted.4. one murari s/o linganna gowda was the original holder of the village office. he died. thereafter, his wife bhararnabai was in the occupation of the land because she was doing the duties of the village office, on an application for regrant, the lands were regranted under sections 5 and 6 of the act by an order dated 23- 6-1964. subsequently, on 8-6-1970 she also obtained permission from the competent authority to sell the lands. but she did not act upon the permission immediately thereafter. however, she sold half the portion of the lands in favour of respondent-1 under a registered sale deed dated 2-6-1980 and the remaining half in favour of respondent-3 on 20-6-1984. later she died.5. in the meanwhile, sub-section (3) of section 5 of the act came to be amended by the karnataka village offices abolition (amendment) act, 1978 by which provision for permission to alienate the regranted lands was removed with a further stipulation that the regranted lands shall not be transferred for a period of 15 years from the date of commencement of section 1 of the amendment act. however, similar provision as was found in unamended sub-section (3) of section 5 has been brought in by the karnataka village offices abolition (amendment) act, 1984 (karnataka act no. 27 of 1984).6. the original holder of the village office murari and his wife bharmabai had a son who predeceased them. the petitioner being the legal representative of the said murari filed an application before the tahsildar for setting aside the alienations made in favour of respondents 1 and 3, for evicting them from the lands in question and for restoration of the said lands to him. the tahsildar having held an enquiry in proceedings no. wtn.cr.221 /84-85 made an order as per annexure-c on 20-3-1985 rejecting the said application. aggrieved by the said order the petitioner filed an appeal before the assistant commissioner, who, by his order, annexure-d, dated 29-8-1986, dismissed the appeal. hence this petition.7. sri. anantha mandagi, learned counsel for the petitioner, contended that though bharmabai obtained an order at the hand of the assistant commissioner on 8-6-1970 under sub-section (3) of section 5 of the principal act to alienate the lands regranted under sections 5 and 6 of the act, she did not act upon the said permission before 7-8-1978 when karnataka act no. 13 of 1978 came into force amending sub-section (3) of section 5 of the act, and that therefore she lost right accrued to her by virtue of the said permission. therefore, in view of the prohibition imposed under the amended provision, she was prevented from selling the granted lands. he further contended that unfortunately the authorities below failed to apply their mind to the legal aspects when they rejected the prayer of the petitioner because as on 2-6-1980 and 20-6-1984 when she sold the land to respondents 1 and 3 respectively, she had no right to do so. in other words, by virtue of the amendment of sub-section (3) of section 5 with effect from 7-8-1978, rights acquired by her under the unamended provision had been taken away and therefore should could not have transferred her rights by way of sale of the lands on the said dates. in view of the above, he contended that tie impugned orders were liable to be quashed.8. on the contrary, the contention urged on behalf of respondents 1 and 3 is that even though sub-section (3) of section 5 of the original act came to be amended by karnataka act no. 13 of 1978, rights accrued to bharmabai are saved in view of section 6 of the karnataka general clauses act, 1899. in that view of the matter, bharmabai was entitled to convey her rights through the registered sale deeds dated 2-6-1980 and 20-6-1984. therefore, the conclusion of the courts below rejecting the application of the petitioner was justified.9. in view of the rival contentions urged before me, i will now examine whether rights accrued to the grantee bharmabai from the permission granted on 8-8-1970 under sub-section (3) of section 5 of the principal act were saved so as to make the alienations made effective and valid.10. sub-section (3) of section 5 before amendment reads;'(3) the occupancy or the ryotwari patta of the land as the case may be, regranted under sub-section (1) shall not be transferable otherwise than by partition among members of hindy joint family without the previous sanction of the deputy commissioner and such sanction shall be granted only on payment of an amount, equal to fifteen times the amount of full assessment of the sand.'11. this provision came to be amended by karnataka act no. 13 of 1978 which came into force from 7-8-1978, the amended provisions reads as follows:-'(3) the occupancy or the ryotwari patta of the land, as the case may be, regranted under sub-section (1) shall not be transferable otherwise than by partition among members of hindu joint family for a period of 15 years from the date of commencement of section 1 of the karnataka village offices abolition (amendment) act, 1978,'12. admittedly, the permission granted to bharmabai on 8-6-1970 was not made use of by her before the amendment of sub-section (3) of section 5 under which she got the permission. on the other hand, she acted upon it in 1980 and 1984 about 10-14 years after the permission was granted that too when the amended provision occupied the field prohibiting the transfers of the lands granted under sections 5 and 6 of the act.13. therefore, the real question that falls for my consideration in this writ petition is whether, after coming into force of the amended provision of sub-section (3) of section 5 with effect from 7-8-1978, the grantee was entitled to sell the lands pursuant to the permission granted earlier to the amendment.14. in order to appreciate the legal contentions, the court will have to verify whether rights accrued earlier to the amendment are saved by the repeating act.15. section 6 of the karnataka act no. 13 of 1978 provides for repeal of karnataka ordinance no. 7 of 1978. it reads:'(1) the karnataka village offices abolition (amendment) ordinance, 1978 (karnataka ordinance no. 7 of 1978) is hereby repealed. (2) notwithstanding such repeal, anything done or any action taken under the principal act as amended by the said ordinance shall be deemed to have been done or taken under the principal act as amended by this act.' 16. it may be noted that in the karnataka ordinance no. 7 of 1978, no such specific provision was made intending to save the right accrued to a person earlier to it. therefore, we will have to fail back upon the bare provision provided in the above section. what is saved under sub-section (2) is anything done or any action taken under the principal act as amended by the said ordinance shall be deemed to have been done or taken under the principal act as amended by this act.17. in order to find out whether the right accrued to bharamabai under the unamended sub-section (3) of section 5 is saved by the amendment act of 1978, it is necessary to read section 6 of the general clauses act, it says:'6. effect of repeal.- where this act or any mysore act or 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 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 inrespect of any 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.' 18. from the above it is clear that in the absence of a different intention appearing in the repealing clause, it shall not revive anything not in force or existing at the time of repeal, affect the previous operation of any enactment so repealed or anything done thereunder, any right, privilege accrued or incurred and any investigation, legal proceeding or remedy in respect of any such right, privilege and any such legal proceeding or remedy etc.. may be taken as if the repealing act had not been passed. first of all, we have to see the intention behind the amendment act of 1978 by which sub-section (3) of section 5 and section 7 inter alia, came to be amended with a view' to put an end to illegal transactions in respect of the lands coming within the purview of the act. in other words, the amendment act was aimed at preventing the lands from being transferred unauthorised and evicting persons found to be in unauthorised occupation of such land. with that intention behind, the legislature did not bring in any clause in the amendment act saving the right (sic) a acquired under the unamended section, if there had been no different intention in the repealing enactment, it would have contained a saving clause in respect of rights and liabilities arising under the repealed enactment since a different intention appears in the repealing clause, question of not affecting the right of bharmabai as stated in section 6 of the general clauses act does not arise. further, we will have to keep in mind that the object of section 6 is only to save any pending proceeding before the court or continuous proceeding or institution of any legal proceeding and nothing more. since the right that is accrued to bharmabai by virtue of the order made by the assistant commissioner under sub-section (3) of section 5 of the principal act has not been saved in the repealing act, to that extent, that right is lost, inasmuch as she could have exercised that right any time before the amendment of the provisions under which she got the right, on the other hand, as already stated, she sold the lands on 2-6-1980 and 20-6-1984 in favour of respondents 1 and 3 long after the amendment came into force on 7-8-1978 although she got such permission as early as on 8-6-1970.19. a distinction is drawn between a legal proceeding for enforcing a right acquired or accrued and a legal proceeding for acquisition of a right. there is a great deal of difference between the two, for as on the date when the amendment act has come into force, no legal proceeding was pending. therefore, that question would not arise. indeed, under the amendment act, there was no provision for permission to alienate the lands resumed under sub-section (3) of section 4 of the act however, similar provision as is found in sub-section (3) of section 5 of the principal act has again been -brought to the statute book by karnataka act no. 27 of 1984 which came into force on 4-5-1984 by which .a proviso to sub-section (3) of section 5 has been inserted as follows:-'provided that such occupancy or the ryotwari patta in respect of land granted to the holder of a village office in an enfranchised inam shall be transferable with the previous sanction of the deputy commissioner which shall be granted on payment of an amount equal to fifteen times the amount of full assessment of the land.'20. bharmabai did not make any efforts to obtain fresh permission under this proviso. instead, she sold the lands in exercise of the right, which was already lost by that time, conferred on her under the permission granted under the principal act.21. this legal position of law had not been appreciated by the authorities below when they rejected the prayer of the petitioner. had they applied their mind to the correct law and decided the case thereon, the petitioner would have got the relief. but they have failed to do so.22. in view of the foregoing, i must hold that the alienations made by bharmabai in favour of respondents 1 and 3 are without the authority of law and hence they are liable to be declared as null and void. consequently the impugned orders are also liable to be quashed.23. in the result this writ petition is allowed. the alienations made by bharmabai in favour of respondents 1 and 3 under registered sale deeds dated 2-6-1980 and 20-6-1984 are declared as null and void. the orders impugned herein at annexure-c and d are hereby quashed. no costs.

Judgment:
ORDER

M. Ramakrishna, J.

1. On 6-9-1991 the Court made an Order in the absence of the learned Counsel on both sides. Later, the learned Counsel on both sides appeared and requested to recall the said Order and to hear them. Hence, this Writ Petition is coming again before Court.

2. I heard learned Counsel on both sides. The Order made by this Court on 6-9-1991 is recalled.

3. Brief facts of the case necessary for the disposal of this Writ Petition are as follows:-

3 acres 25 guntas in Sy.No. 6/2 and 1 acre 34 guntas in Sy.No. 6/3 situated in Bhjradi village, Raibag Taluk, Belgaum District, are admittedly Patilki Inam lands: Therefore, the Karnataka Village Offices Abolition Act, 1961 ('the Act' for short) is attracted.

4. One Murari s/o Linganna Gowda was the original holder of the village Office. He died. Thereafter, his wife Bhararnabai was in the occupation of the land because she was doing the duties of the Village Office, On an application for regrant, the lands were regranted under Sections 5 and 6 of the Act by an order dated 23- 6-1964. Subsequently, on 8-6-1970 she also obtained permission from the competent authority to sell the lands. But she did not act upon the permission immediately thereafter. However, she sold half the portion of the lands in favour of respondent-1 under a registered sale deed dated 2-6-1980 and the remaining half in favour of respondent-3 on 20-6-1984. Later she died.

5. In the meanwhile, Sub-section (3) of Section 5 of the Act came to be amended by the Karnataka Village Offices Abolition (Amendment) Act, 1978 by which provision for permission to alienate the regranted lands was removed with a further stipulation that the regranted lands shall not be transferred for a period of 15 years from the date of commencement of Section 1 of the Amendment Act. However, similar provision as was found in unamended Sub-section (3) of Section 5 has been brought in by the Karnataka Village Offices Abolition (Amendment) Act, 1984 (Karnataka Act No. 27 of 1984).

6. The original holder of the village office Murari and his wife Bharmabai had a son who predeceased them. The petitioner being the legal representative of the said Murari filed an application before the Tahsildar for setting aside the alienations made in favour of respondents 1 and 3, for evicting them from the lands in question and for restoration of the said lands to him. The Tahsildar having held an enquiry in proceedings No. WTN.CR.221 /84-85 made an order as per Annexure-C on 20-3-1985 rejecting the said application. Aggrieved by the said order the petitioner filed an appeal before the Assistant Commissioner, who, by his order, Annexure-D, dated 29-8-1986, dismissed the appeal. Hence this petition.

7. Sri. Anantha Mandagi, learned Counsel for the petitioner, contended that though Bharmabai obtained an order at the hand of the Assistant Commissioner on 8-6-1970 under Sub-section (3) of Section 5 of the principal Act to alienate the lands regranted under Sections 5 and 6 of the Act, she did not act upon the said permission before 7-8-1978 when Karnataka Act No. 13 of 1978 came into force amending Sub-section (3) of Section 5 of the Act, and that therefore she lost right accrued to her by virtue of the said permission. Therefore, in view of the prohibition imposed under the amended provision, she was prevented from selling the granted lands. He further contended that unfortunately the authorities below failed to apply their mind to the legal aspects when they rejected the prayer of the petitioner because as on 2-6-1980 and 20-6-1984 when she sold the land to respondents 1 and 3 respectively, she had no right to do so. In other words, by virtue of the amendment of Sub-section (3) of Section 5 with effect from 7-8-1978, rights acquired by her under the unamended provision had been taken away and therefore should could not have transferred her rights by way of sale of the lands on the said dates. In view of the above, he contended that tie impugned orders were liable to be quashed.

8. On the contrary, the contention urged on behalf of respondents 1 and 3 is that even though Sub-section (3) of Section 5 of the original Act came to be amended by Karnataka Act No. 13 of 1978, rights accrued to Bharmabai are saved in view of Section 6 of the Karnataka General Clauses Act, 1899. In that view of the matter, Bharmabai was entitled to convey her rights through the registered sale deeds dated 2-6-1980 and 20-6-1984. Therefore, the conclusion of the Courts below rejecting the application of the petitioner was justified.

9. In view of the rival contentions urged before me, I will now examine whether rights accrued to the grantee Bharmabai from the permission granted on 8-8-1970 under Sub-section (3) of Section 5 of the Principal Act were saved so as to make the alienations made effective and valid.

10. Sub-section (3) of Section 5 before amendment reads;

'(3) The occupancy or the ryotwari patta of the land as the case may be, regranted under Sub-section (1) shall not be transferable otherwise than by partition among members of Hindy joint family without the previous sanction of the Deputy Commissioner and such sanction shall be granted only on payment of an amount, equal to fifteen times the amount of full assessment of the Sand.'

11. This provision came to be amended by Karnataka Act No. 13 of 1978 which came into force from 7-8-1978, The amended provisions reads as follows:-

'(3) The occupancy or the ryotwari patta of the land, as the case may be, regranted under Sub-section (1) shall not be transferable otherwise than by partition among members of Hindu joint family for a period of 15 years from the date of commencement of Section 1 of the Karnataka Village Offices Abolition (Amendment) Act, 1978,'

12. Admittedly, the permission granted to Bharmabai on 8-6-1970 was not made use of by her before the amendment of Sub-section (3) of Section 5 under which she got the permission. On the other hand, she acted upon it in 1980 and 1984 about 10-14 years after the permission was granted that too when the amended provision occupied the field prohibiting the transfers of the lands granted under Sections 5 and 6 of the Act.

13. Therefore, the real question that falls for my consideration in this Writ Petition is whether, after coming into force of the amended provision of Sub-section (3) of Section 5 with effect from 7-8-1978, the grantee was entitled to sell the lands pursuant to the permission granted earlier to the amendment.

14. In order to appreciate the legal contentions, the Court will have to verify whether rights accrued earlier to the amendment are saved by the repeating Act.

15. Section 6 of the Karnataka Act No. 13 of 1978 provides for repeal of Karnataka Ordinance No. 7 of 1978. It reads:

'(1) The Karnataka Village Offices Abolition (Amendment) Ordinance, 1978 (Karnataka Ordinance No. 7 of 1978) is hereby repealed.

(2) Notwithstanding such repeal, anything done or any action taken under the Principal Act as amended by the said Ordinance shall be deemed to have been done or taken under the principal Act as amended by this Act.'

16. It may be noted that in the Karnataka Ordinance No. 7 of 1978, no such specific provision was made intending to save the right accrued to a person earlier to it. Therefore, we will have to fail back upon the bare provision provided in the above Section. What is saved under Sub-section (2) is anything done or any action taken under the Principal Act as amended by the said Ordinance shall be deemed to have been done or taken under the Principal Act as amended by this Act.

17. in order to find out whether the right accrued to Bharamabai under the unamended Sub-section (3) of Section 5 is saved by the Amendment Act of 1978, It is necessary to read Section 6 of the General Clauses Act, it says:

'6. Effect of repeal.- Where this Act or any Mysore Act or 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 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 inrespect of any 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.'

18. From the above it is clear that in the absence of a different intention appearing in the repealing clause, it shall not revive anything not in force or existing at the time of repeal, affect the previous operation of any enactment so repealed or anything done thereunder, any right, privilege accrued or incurred and any investigation, legal proceeding or remedy in respect of any such right, privilege and any such legal proceeding or remedy etc.. may be taken as if the repealing Act had not been passed. First of all, we have to see the intention behind the Amendment Act of 1978 by which Sub-section (3) of Section 5 and Section 7 inter alia, came to be amended with a view' to put an end to illegal transactions in respect of the lands coming within the purview of the Act. In other words, the Amendment Act was aimed at preventing the lands from being transferred unauthorised and evicting persons found to be in unauthorised occupation of such land. With that intention behind, the Legislature did not bring in any clause in the Amendment Act saving the right (sic) a acquired under the unamended Section, if there had been no different intention in the repealing enactment, it would have contained a saving clause in respect of rights and liabilities arising under the repealed enactment Since a different intention appears in the repealing clause, question of not affecting the right of Bharmabai as stated in Section 6 of the General Clauses Act does not arise. Further, we will have to keep in mind that the object of Section 6 is only to save any pending proceeding before the Court or continuous proceeding or institution of any legal proceeding and nothing more. Since the right that is accrued to Bharmabai by virtue of the order made by the Assistant Commissioner under Sub-section (3) of Section 5 of the Principal Act has not been saved in the repealing Act, to that extent, that right is lost, inasmuch as she could have exercised that right any time before the amendment of the provisions under which she got the right, On the other hand, as already stated, she sold the lands on 2-6-1980 and 20-6-1984 in favour of respondents 1 and 3 long after the amendment came into force on 7-8-1978 although she got such permission as early as on 8-6-1970.

19. A distinction is drawn between a legal proceeding for enforcing a right acquired or accrued and a legal proceeding for acquisition of a right. There is a great deal of difference between the two, for as on the date when the Amendment Act has come into force, no legal proceeding was pending. Therefore, that question would not arise. Indeed, under the Amendment Act, there was no provision for permission to alienate the lands resumed under Sub-section (3) of Section 4 of the Act However, similar provision as is found in Sub-section (3) of Section 5 of the Principal Act has again been -brought to the statute book by Karnataka Act No. 27 of 1984 which came into force on 4-5-1984 by which .a proviso to Sub-section (3) of Section 5 has been inserted as follows:-

'Provided that such occupancy or the ryotwari patta in respect of land granted to the holder of a village office in an enfranchised inam shall be transferable with the previous sanction of the Deputy Commissioner which shall be granted on payment of an amount equal to fifteen times the amount of full assessment of the land.'

20. Bharmabai did not make any efforts to obtain fresh permission under this proviso. Instead, she sold the lands in exercise of the right, which was already lost by that time, conferred on her under the permission granted under the principal Act.

21. This legal position of law had not been appreciated by the authorities below when they rejected the prayer of the petitioner. Had they applied their mind to the correct law and decided the case thereon, the petitioner would have got the relief. But they have failed to do so.

22. In view of the foregoing, I must hold that the alienations made by Bharmabai in favour of respondents 1 and 3 are without the authority of law and hence they are liable to be declared as null and void. Consequently the impugned orders are also liable to be quashed.

23. In the result this Writ Petition is allowed. The alienations made by Bharmabai in favour of respondents 1 and 3 under registered sale deeds dated 2-6-1980 and 20-6-1984 are declared as null and void. The orders impugned herein at Annexure-C and D are hereby quashed. No costs.