OWNERSHIP OF IMMOVEABLE PROPERTY

AIR 2005 SC 3708 Union of India vs Pramod Gupta (D) by LRs. & Ors.. "Ownership" in respect of an immovable property would mean a bundle of rights. Only a proprietor of a surface land will have the sub-soil right. But such rights may also have certain limitations. Tenure holder or sub-tenure holder and / or an agricultural tenant created for carrying out agricultural operation per se would not become the owner of the sub-soil right. The right granted in favour of such sub-tenure holder, tenure holder or the agricultural tenant would, thus, depend upon the concerned statute and/ or the relevant covenants contained in the grant.

Harassment of a common man by public authorities is socially and legally impermissible

Supreme Court in case of LUCKNOW DEVELOPMENT AUTHORITY v. M.K.
GUPTHA at paragraph 10 held thus

"an ordinary citizen or a common man is hardly equipped to match the might
of the State or its instrumentalities .... A public functionary if he acts
maliciously or oppressively and the exercise of power results in harassment and
agony then it is not an exercise of power but its abuse. No law provides
protection against it. He who is responsible for it must suffer it. Compensation
or damage as explained earlier may arise even when the officer discharges his
duty honestly and bona fide. But when it arises due to arbitrary or capricious
behaviour then it loses its individual character and assumes social
significance. Harassment of a common man by public authorities is socially
abhorring and legally impermissible..."

Regarding fraudulent transactions and GPA sales what the law says

In Lourdu Mari David and Ors. vs. Louis Chinnaya Arogiaswamy and Ors. Reported in (1996) 5 SCC 589 the Supreme Court observed: "It is settled law that the party who seeks to avail of the equitable jurisdiction of a court and specific performance being equitable relief, must come to the court with clean hands. In other words the party who makes false allegations does not come with clean hands and is not entitled to the equitable relief."

THE STATE OF ANDHRA PRADESH & ANOTHER V. T.SURYACHANDRA RAO, (2006) 1 LW 547 at pg.551 wherein the Honourable Supreme Court has observed as follows: " "Fraud" as is well known vitiates every solemn act. Fraud and justice never dwell together. Fraud is a conduct either by letter or words, which includes the other person or authority to take a definite determinative stand as a response to the conduct of the former either by words or letter. It is also well settled that misrepresentation itself amounts to fraud. Indeed, innocent misrepresentation may also give reason to claim relief against fraud. A fraudulent misrepresentation is called deceit and consists in leading a man into damage by willfully or recklessly causing him to believe and act on falsehood. It is a fraud in law if a party makes representations, which he knows to be false, and injury enures therefrom although the motive from which the representations proceeded may not have been bad. An act of fraud on court is always viewed seriously. A collusion or conspiracy with a view to deprive the rights of the others in relation to a property would render the transaction void ab initio. Fraud and deception are synonymous. Although in a given case a deception may not amount to fraud, fraud is anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine including res judicata

A.V.PAPAYYA SASRTY AND OTHERS V. GOVT. OF A.P. AND OTHERS, (2007) 4 SUPREME COURT CASES 221, wherein it is observed that 'Fraud vitiates all judicial acts whether in rem or inpersonam and that the Judgment, decree or order obtained by fraud has to be treated as non est and nullity, whether by Court of first instance or by the final Court and that it can be challenged in any Court, at any time, in appeal, revision, writ or even in collateral proceedings.'

S.P.CHENGALVARAYA NAIDU V. JAGANNATH AND OTHERS, AIR (81) 1994 SUPREME COURT 853, wherein it is held as follows:- 'The courts of law are meant for imparting justice between the parties. One who comes to the Court, must come with clean hands. It can be said without hesitation that a person whose case is based on falsehood has no right to approach the Court. He can be summarily thrown out at any stage of the litigation. A litigant, who approaches the Court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the court as well as on the opposite party.'

RAM CHANDRA SINGH V. SAVITRI DEVI AND OTHERS, (2003) 8 SCC 319 at pg. 322 wherein it is inter alia held that 'An act of fraud on Court is always viewed seriously. A collusion or conspiracy with a view to deprive the rights of others in relation to a property would render the transaction void ab initio. Fraud and deception are synonymous. Although in a given case a deception may not amount to fraud, fraud is anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine including res judicata.'


A sale of immovable property is a contract, which gives an individual civil right to the buyer, if such sale is in accordance with entrenched common law principles. The Indian Contract Act, 1872, Specific Relief Act and Transfer of Property Act, essentially deal with, among others - the contract of sale. The Indian Evidence Act, the Registration Act and the Stamp Act form the trinity of procedural and adjutant law in respect of sale whereas the three Acts referred to before form the trinity of substantive law of contract of sale.


Chapter II of TP Act contains two parts. Part-A deals with ''Transfer of property whether movable or immovable' (Sections 5 to 34). Part-B deals with ''Transfer of immovable property' (Sections 38 to 53-A). A transfer as defined by Section 5 of TP Act is conveyance of property by one living person to one or more living persons or to him in present or in future. Section 6 of TP Act declares that property of any kind may be transferred except the transfer of property, which is prohibited by TP Act. Clauses (a) to (h) under Section 6 of TP Act, deal with some of prohibited transfers. Clause (h) lays down that "no transfer can be made (i) insofar as it is opposed to the nature of the interest affected thereby, or (ii) for an unlawful object, or consideration within the meaning of Section 23 of the Indian Contract Act, 1872, or (iii) to a person legally disqualified to be transferee." Section 7 of TP Act enumerates that every person entitled to transferable property or authorized to dispose of transferred property, not his own, can transfer the property provided he is competent to do so. Section 8 of TP Act deals with 'operation of transfer'. It is to the effect that a transfer of property passes forthwith to the transferee of the interest, which the transferor is then capable of passing in the property and legal incidents thereof. When such transfer is completed as per Sections 10 and 11 of TP Act, any restriction contained in the transfer deed disentitling the transferee from operating or disposing of his interest in the property would be void and when the interest is created absolutely in the transferee with a condition that such transferee can enjoy subject to conditions, the transferee can ignore such conditions. As per Section 4 of TP Act, all the provisions relating to contract in the TP Act shall be taken as part of the Indian Contract Act and Section 54 (Paragraphs 2 and 3), Sections 59, 107 and 123 of TP Act shall be read as supplemental to the Registration Act.

Unless and until, a person is competent to contract and entitled to transfer the property, a valid transfer of property cannot take place (Sections 5 and 7 of TP Act). As a necessary corollary, if the transfer of property is by a person without title or such transfer is opposed to nature of interest or for an unlawful object or consideration within the meaning of Section 23 of the Contract Act or transferee is legally disqualified to be transferee, title in the property does not pass to the transferee (Sections 6(h) and 8 of TP Act and Section 23 of the Contract Act).

Section 23 of the Indian Contract Act, 1872 (hereinafter referred to as 'the Contract Act') is applicable to the present controversy. It lays down that an agreement is void if it deviates the provisions of any law. It further lays down that consideration or object of an agreement is lawful unless it is forbidden by any law or is fraudulent or involves or implies injury to the person or property of another, or the Court regards it as immoral or opposed to public policy. Therefore, such a document, in every ones view, is a fraudulent document within the meaning of Section 23 of the Contract Act and as such, cannot be registered.

REGISTRATION ACT 1908 PROVISIONS:-

32. Persons to present documents for registration
Except in the cases mentioned in 24[sections 31, 88 and 89], every document to be registered under this Act, whether such registration be compulsory or optional, shall be presented at the proper registration office-
(a) by some person executing or claiming under the same, or, in the case of a copy of a decree or order, claiming under the decree or order, or
(b) by the representative or assignee of such a person, or
(c) by the agent of such a person, representative or assign, duly authorised by power-of-attorney executed and authenticated in manner hereinafter mentioned.


33. Power-of-attorney recognisable for purposes of section 32
(1) For the purposes of section 32, the following powers-of-attorney shall alone be recognised, namely:-
(a) if the principal at the time of executing the power-of-attorney resides in any part of 18[India] in which this Act is for the time being in force, a power-of-attorney executed before and authenticated by the Registrar or Sub-Registrar within whose district or sub-district the principal resides;
(b) if the principal at the time aforesaid 25[resides in any part of India in which this Act is not in force], a power-of-attorney executed before and authenticated by any Magistrate;
(c) if the principal at the time aforesaid does not reside in 18[India], a power-of-attorney executed before and authenticated by Notary Public, or any court, Judge, Magistrate, 26[Indian] Consul or vice-consul, or representative 27[***] of the Central Government:
PROVIDED that the following persons shall not be required to attend at any registration-office or court for the purpose of executing any such power-of-attorney as is mentioned in clauses (a) and (b) of this section, namely-
(i) persons who by reason of bodily infirmity are unable without risk or serious inconvenience so to attend;
(ii) persons who are in jail under civil or criminal process; and
(iii) persons exempt by law from personal appearance in court.
5[Explanation: In this sub-section "India" means India, as defined in clause (28) of section 3 of the General Clauses Act, 1897.]
(2) In the case of every such person the Registrar or Sub-Registrar or Magistrate, as the case may be, if satisfied that the power-of-attorney has been voluntarily executed by the person purporting to be the principal, may attest the same without requiring his personal attendance at the office or court aforesaid.
(3) To obtain evidence as to the voluntary nature of the execution, the Registrar or Sub-Registrar or Magistrate may either himself go to the house of the person purporting to be the principal, or to the jail in which he is confined, and examine him, or issue a commission for his examination.
(4) Any power-of-attorney mentioned in this section may be proved by the production of it without further proof when it purports on the face of it to have been executed before and authenticated by the person or court hereinbefore mentioned in that behalf.


81. Penalty for incorrectly endorsing, copying, translating or registering documents with intent to injure

Every registering officer appointed under this Act and every person employed in his office for the purposes of this Act, who, being charged with the endorsing, copying, translating or registering of any document presented or deposited under its provisions, endorses, copies, translates or registers such document in a manner which he knows or believes to be incorrect, intending thereby to cause or knowing it to be likely that he may thereby cause injury, as defined in the Indian Penal Code, to any person, shall be punishable with imprisonment for a term which may extend to seven years, or with fine, or with both.


83. Registering officer may commence prosecutions

(1) A prosecution for any offence under this Act coming to the knowledge of a registering officer in his official capacity may be commenced by or with the permissions of the Inspector-General, 31[***] the Registrar or the Sub-Registrar, in whose territories, district or sub-district, as the case may be, the offence has been committed. (2) Offences punishable under this Act shall be triable by any court or officer exercising powers not less than those of a Magistrate of the second class.

KARNATAKA STAMP ACT PROVISIONS


33. Examination and impounding of instruments.- (1) Every person having by law or consent of parties authority to receive evidence, and every person in charge of a public office, except an officer of police, before whom any instrument, chargeable in his opinion, with duty, is produced or comes in the performance of his functions, shall, if it appears to him that such instrument is not duly stamped, impound the same.
(2) For that purpose every such person shall examine every instrument so chargeable and so produced or coming before him, in order to ascertain whether it is stamped with a stamp of the value and description required by the law in force in the 1[State of Karnataka]1 when such instrument was executed or first executed:


34. Instruments not duly stamped inadmissible in evidence, etc.- No instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped:
Provided that,—
(a) any such instrument not being an instrument chargeable 1[with a duty not exceeding fifteen naye paise]1 only, or a mortgage of crop [Article 1[35]1 (a) of the Schedule] chargeable under clauses (a) and (b) of section 3 with a duty of twenty-five naye paise shall, subject to all just exceptions, be admitted in evidence on payment of the duty with which the same is chargeable, or, in the case of an instrument insufficiently stamped, or the amount required to make up such duty, together with a penalty of five rupees, or, when ten times the amount of the proper duty or deficient portion thereof exceeds five rupees, of a sum equal to ten times such duty or portion;
1. Substituted by Act 29 of 1962 w.e.f. 1.10.1962.
(b) where a contract or agreement of any kind is effected by correspondence consisting of two or more letters and any one of the letters bears the proper stamp, the contract or agreement shall be deemed to be duly stamped;
(c) nothing herein contained shall prevent the admission of any instrument in evidence in any proceeding in a Criminal Court, other than a proceeding under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure, 1898;
(d) nothing herein contained shall prevent the admission of any instrument in any Court when such instrument has been executed by or on behalf of the Government, or where it bears the certificate of the 1[Deputy Commissioner]1 as provided by section 32 or any other provision of this Act 2[and such certificate has not been revised in exercise of the powers conferred by the provisions of Chapter VI]2.

KARNATAKA STAMP SCHEDULE ARTICLE PROVISIONS

Art. 41. Power of Attorney - (as defined by Section 2(1)(p) not being a proxy-
(a) when executed for the sole purpose of procuring the registration of one or more documents in relation to a single transaction or for admitting execution of one or more such documents; 1[One hundred rupees]
(b) when authorizing one person or more to act in a single transaction other than the case mentioned in clause (a); 1[One hundred rupees]
(c) when authorizing not more than five persons to act jointly and severally in more than one transaction or generally; 2[One hundred rupees]

1. Substituted for the words "ten rupees" and "twenty rupees" by Act No. 7 of 2000, w.e.f. 1.4.2000.
2. Substituted by Act No. 10 of 1990, w.e.f. 1.4.1990.

(d) when authorizing more than five but not more than ten persons to act jointly and severally in more than one transaction or generally; 1[Two hundred rupees]

2 (e) when given for consideration or when coupled with interest and authorizing the attorney to sell any immovable property; The same duty as a conveyance [under Art. No. 20(1)] on consideration or on market value of the property (which is the subject matter of such power of attorney) whichever is higher..

1(f) If relating to construction or development or sale of an immoveable property, including a multiunit house or building or unit of apartment or flat or portion of a multistoried building by a person having a stipulation that after construction or development, such property shall be held jointly or severally by that person and the owner or lessee, as the case may be, of such property, or that it shall be sold jointly or severally by them or that a part of it shall be held jointly or severally by them and the remaining part there of shall be sold jointly or severally by them.
Explanation I
1) The expression “Lease” shall mean a holder of a lease, for a period exceeding 30 years or more, or in perpetuity or does not purport to be for any definite term.
The expression “building” shall mean a building having more than one apartment or flat or office accommodation or portion of a multistoried building or both. One rupee for every one hundred rupees or part thereof on the market value of the property or the estimated cost of construction or proposed construction or development or proposed development of the property, as the case may be (which is the subject matter of such transfer under the agreement in accordance with the provision of section 28 of the K.S.Act, 1957) or on the consideration for such transfer whichever is higher.

Provided that, when proper stamp duty is paid under “clause (e), or clause (f) of the article 5, as the case may be, on such agreement or records thereof or memorandum of an agreement executed between the same parties and in respect of the same property, the stamp duty chargeable under these clauses shall be as per article 41(f)”.
1. Substituted by Act No. 10 of 1990, w.e.f. 1.4.1990.
2. Clause (e) substituted by Act No.9 of 2009 w.e.f. 1-4-2009

Description of Instrument Proper Stamp Duty
1 (eb) When given to person other than the father, mother, wife or husband, sons /daughters, brothers, sisters in relation to the executant authorizing such person to sell immovable property situated in Karnataka State. 2Seven rupees and fifty paise for every one hundred rupees or part thereof on the market value of the property which is the subject matter of power of attorney.
Provided that the duty paid on such instrument is adjustable towards the duty payable on the instrument of sale or transfer executed subsequently in favour of either the attorney holder or any other person.
(f) in any other case. 3 [Two hundred rupees.]

N.B. - The term "Registration" includes every operation incidental to registration under the Registration Act, 1908 (Central Act 16 of 1908).
Explanation - For the purposes of this Article more persons than one when belonging to the same firm, shall be deemed to be one person.
Act. 42. Protest of Bill or note, that is to say, any declaration in writing made by a Notary Public or other person lawfully acting as such, attesting the dishonor of a bill of exchange or promissory note. 4[Ten rupees.]
1. Substituted by Act No. 6 of 1999, w.e.f. 1.4.1999.
2.Substituted for the words” eight rupees” by Act No. 7 of 2006 w.e.f 1-4-2006
3. Substituted for the words "one hundred rupees" by Act No.9 of 2009 w.e.f. 1.4.2009.
4. Substituted for the words "five rupees" by Act No.10 of 1990 w.e.f. 1.4.1990.


If the title passed on is defective, the law gives the option to the purchaser to avoid such sale and sue for recovery of consideration and/or damages for breach and misrepresentation. In a situation there could also be a criminal charge against the spurious vendor for cheating under Indian Penal Code, 1860. Even in a case where the vendor has no title at all but the purchaser was made to believe that what is passed on is a valid title in the property demised under the instrument, the vendee has remedy in civil law as well as criminal law. This remedy, however, is not available to a purchaser who is negligent in not inspecting the title of the vendor and who does not insist upon such covenant or warranty. The principle of caveat emptor (let the purchaser beware), however, has no application if vendor has practised fraud to induce the purchaser to accept the offer of sale, ['A Selection of Legal Maxims': Herbert Broom; Tenth edn., (1939), Sweet and Maxwell, pp.528-529.]. In case of fraud, the vendor cannot maintain any action against the purchaser. The legal maxim 'ex dolo malo non oritur actio' applies and the vendor who knowingly committed an act declared by the law to be criminal cannot maintain action against the purchaser who refuses to take the title conveyed under the deed. The maxim 'dolus mains' vitiates all transactions effected by fraud, [Ibid pp. 497; 540.]. Insofar as the buyer is concerned, as observed by Herbert Broom in his compilation of Legal Maxims (p.540), he may abide by the contract induced by fraud and bring an action for deceit (i.e., cheating in Indian law), for the damages sustained by the fraud. The buyer may also rescind the contract returning the goods if already accepted and recover the price paid.

The legal maxims 'nemo dat quod non habet' and 'nemo plus juris ad alium transferre potest quam ipse habet' postulate that where property is sold by a person who is not the owner and who does not sell under the authority or consent of the real owner, the buyer acquires no title to the property than the seller had. The Indian law recognizes this principle in various provisions of various statutes which in pith and substance deal with Contracts, Transfer of property and Specific relief

The position of transferee under a fraudulent instrument of conveyance is different from the true owner of the title to the property in question. Section 31 of the Specific Relief Act provides one remedy, namely, cancellation of the instrument by showing to the Court that such instrument is void or voidable and that if such instrument is allowed to outstanding, it would cause serious injury. The injury referred to in Section 31 need not be with reference to the person i.e., the true owner of the title, but can as well encompass the property involved. Indeed, Sub-section (2) of Section 31 of the Specific Relief Act requires the Court trying a suit for cancellation of instrument to send a copy of the decree to the Registering Officer, who shall note on the copy of the instrument contained in the books of registration the fact of its cancellation. This would only show that the law is anxious to protect the title to the immovable property from all deceitful encumbrances. Should there be a fraudulent transfer or a transfer vitiated by misrepresentation and collusion between two unconcerned persons, does the law expects the true owner to file a suit only under Section 31 of the Specific Relief Act or to file a suit for declaration of his title again and again? That in all cases, the true owner of the. Immovable property cannot seek the remedy of cancellation under Section 31 is already discussed. If a person has enjoyed the property as a true owner for considerable length of time, merely because there is a fraudulent transfer of his property, by one incompetent person to another person, should any one compel the true owner to file a suit for declaration of title again and again? Does it not render the registration of the transfer of title, which he had obtained much earlier, useless, unfruitful and meaningless? Whether the present dispensation of law is in such ineffective state containing vacuum or is it the duty of every Court to interpret the existing statute law taking into consideration the phenomenal changes in the society and also fast changing values in the society to mould the existing policy in statute law so as to render fraudulent transfers ineffective without recourse to common law remedy?

As seen from the Statement of Objects and Reasons appended to the Registration Bill it was felt that registration of certain documents of transactions should be made compulsory so as to avoid conflicts in relation to various transactions. The purpose was to assure people that if a document evidencing transaction or conveyance is registered, no one can claim any interest by creating a forged or sham document. the object of registering a document is to give notice to the world that a document has been executed to prevent fraud and forgery and to secure a reliable and complete account of all transactions effecting the title to the property.


Rule 26 of Registration Rules

(i) Every document shall, before acceptance for registration, be examined by the Registering Officer to ensure that all the requirements prescribed in the Act and in these rules have been complied with, for instance,-
(a) that it has been presented in the proper office (Sections 28, 29 and 30);
(b) that the person is entitled to present it (Sections 32 and 40);
(c) that if it is a non-testamentary document and relates to immovable property, it contains a description of property sufficient to identify the same and fulfils the requirements of Rules 18 to 20.
(d) that if it is written in a language not commonly used in the district and not understood by the Registering Officer it is accompanied by a true translation into a language commonly used in the district and also by true copy (Section 19);
(e) that if it contains a map or plan, it is accompanied by true copies of such map or plan as required by Section 21(4);
(f) that if it contains no unattested interlineations, blanks, erasures or alterations, which in his opinion require to be attested as required by Section 20(1);
(g) that if the document is one other than a will it has been presented to within the time prescribed by Sections 23 to 26;
(h) that it bears the date of its execution and does not bear a date anterior to the date of purchase of stamp papers and the document is written on a date subsequent to the date of representation;
(i) that if the date is written in any document other than a will presented for registration after the death of the testator according to both the British and the Indian calendars, these dates tally; and
(j) that if the presentant is not personally known to the Registering Officer, he is accompanied by such identifying witnesses with whose testimony the Registering Officer may be satisfied.

(ii) If there are any informalities in presentation of a nature which can be remedied, for instance, non-compliance of the requirements mentioned in Clauses (a) to (f), (h), (i) and (j) of Sub-rule (i) or this rule, the Registering Officer shall give the party such information as may be necessary and return the fees and the document with a view to the document being presented again in due form. The action of the Registering Officer shall be confined to advice and he shall not himself alter the document in any way.


It forms no part of a Registering Officer's duty to enquire into the validity of a document brought to him for registration or to attend to any written or verbal protest against the registration of a document based on the ground that the executing party had no right to execute the document; but he is bound to consider objections raised on any of the grounds stated below:
(a) that the parties appearing or about to appear before him are not thepersons they profess to be;
(b) that the document is forged;
(c) that the person appearing as a representative, assign or agent, has no right to appear in that capacity;
(d) that the existing party is not really dead as alleged by the party applying for registration; or


Though Rule 58 prohibits the Registering Officers from enquiring into validity of the document, Rule 26 read-with Rule 58 reveals that it is always permissible for the Registering Officer to examine the document presented for registration as to whether the person who presented the document is entitled to present, whether such person is known to the officer or has been properly identified by the identifying witnesses, and also examine the document with reference to the various provisions referred to hereinabove. If any objection is raised, the Registering Officer has to consider whether the parties appearing before him are not the parties they profess to be, whether the document is forged and whether the document is presented without proper authority by representative, and whether the executing party is dead or not. In case, the Registering Officer is not satisfied, he can refuse registration.

The question may also have to be examined from the point of view of administrative law. Needless to point out that administrative law, which also governs the exercise of power of judicial review by this Court is intended to see that all the public authorities, who are vested with powers discharge their duties and functions in accordance with rule of law, in a manner which is not illegal, irrational or improper. In post constitutional era, all the power exercised in the democratic governance flows from super statute i.e., the Constitution of India. There is no gain saying that all power is a trust and the trust should be discharged legally, fairly, impartially and with accountability. There is always presumption - though rebuttable; in law that all public functions are discharged for public good in accordance with law. If a public authority is induced to discharge the trust (exercise power) in a manner which is fraudulent, whether such public authority can recall/ revoke earlier fraudulent order? Insofar as the judicial authorities and Courts are concerned, it is now settled law that every Court in judicial hierarchy has inherent power to revoke an earlier order obtained by fraud.

Fraud is a conduct which induces another person or authority to take a definite determinative stand in response to such person's conduct by words or letter. In his treatise on the 'Law of Fraud and Mistake', Kerr describes the elements of fraud as consisting in one man's endeavour by deception to alter another man's general rights; or in one man's endeavouring by circumvention to alter general rights of another or in one man's endeavouring by deception to alter another man's particular rights. Fraud and dispensation of justice by any authority - be it judicial or executive; do not go together. One species of fraud is misrepresentation. When the man misrepresents about some animate thing or inanimate thing which is quite opposite to the reality, he would be committing fraud by misrepresentation. The effect of fraud on the person or the benefit derived by such person is a cipher. "Fraud unravels everything and no Court can allow a person to keep an advantage obtained by fraud nor judgment of a Court or an order of a public authority can be allowed to stand if the same is obtained by fraud".

In Shrisht Dhawan v. Shaw Brothers , the Supreme Court held as under: Fraud and collusion vitiate even the most solemn proceedings in any civilized system of jurisprudence. It is a concept descriptive of human conduct. Michael Levi likens a fraudster to Milton's sorcerer, Comus, who exulted in his ability to, 'wing me into the easy-hearted man and trap him into shares'. It has been defined as an act of trickery or deceit. In Webster's Third New International Dictionary fraud in equity has been defined as an act or omission to act or concealment by which one person obtains an advantage against conscience over another or which equity or public policy forbids as being prejudicial to another. In Black's Legal Dictionary, fraud is defined as an intentional perversion of truth for the purpose of inducing another in reliance upon it to part with some valuable thing belonging to him or surrender a legal right; a false representation of a matter of fact whether by words or by conduct, by false or misleading allegations, or by concealment of that which should have been disclosed, which deceives and is intended to deceive another so that he shall act upon it to his legal injury. In Concise Oxford Dictionary, it has been defined as criminal deception, use of false representation to gain unjust advantage; dishonest artifice or trick... From dictionary meaning or even otherwise fraud arises out of deliberate active role of representator about a fact which he knows to be untrue yet he succeeds in misleading the representee by making him believe it to be true. The representation to become fraudulent must be of fact with knowledge that it as false.

In S.P. Chengalvaraya Naidu v. Jagannath , quoting Lord Edward Coke (that 'fraud avoids all judicial acts, ecclesiastical or temporal',) Supreme Court of India emphasised that the judgment or decree obtained by fraud on the Court is nullity and non est in the eye of law. It was also held that a decree/ judgment vitiated by fraud must be ignored treating it as nullity by every Court whether superior or inferior as "finality of litigation is not available when fraud is alleged". The following passage from the said judgment is relevant here. ....The principle of "finality of litigation" cannot be passed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants. The Courts of law are meant for imparting justice between the parties. One who comes to the Court, must come with clean hands. We are constrained to say that more often than not. Process of the Court is being abused. Property-grabbers, tax-evaders, bank-loan-dodgers and other unscrupulous persons from all walks of life find the Court-process a convenient lever to retain the illegal gains indefinitely. We have no hesitation to say that a person whose case is based on falsehood, has no right to approach the Court. He can be summarily thrown out at any stage of the litigation... A fraud is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another's loss. It is a cheating intended to get an advantage...

The principle is thus well settled that all the Courts and judicial forums in India have inherent power to recall or revoke the order passed earlier when it is shown that such order came to be passed by reason of fraud played on the Court. What is the effect of fraud in public administration when power is exercised by either administrative/executive authorities or statutory authorities? This was precisely the question considered by the Supreme Court in Indian Bank v. Satyam Fibres (India) Private Limited . While observing that the judiciary in India possesses inherent power under Section 151 of Code of Civil Procedure, 1908 (CPC), to recall its judgment or order obtained by fraud on the Court, the Apex Court ruled as under: This plea could not have been legally ignored by the Commission which needs to be reminded that the authorities, be they constitutional, statutory or administrative, (and particularly those who have to decide a lis) possess the power to recall their judgments or orders if they are obtained by fraud as fraud and justice never dwell together (Fraus et jus nunquam cohabitant). It has been repeatedly said that fraud and deceit defend or excuse no man (Fraus et dolus nemini patrocinari debent)...Since fraud affects the solemnity, regularity and orderliness of the proceedings of the Court and also amounts to an abuse of the process of Court, the Courts have been held to have inherent power to set aside an order obtained by fraud practised upon that Court. Similarly, where the Court is misled by a party or the Court itself commits a mistake which prejudices a party, the Court has the inherent power to recall its order.


It is thus law of the land that even administrative authorities have inherent powers to recall or revoke their own orders if such order was obtained by playing fraud on such public authority. As a necessary corollary if something is done by public authority at the behest of a person who played fraud, the same public authority can nullify that was done as vitiated by fraud. As observed by the Supreme Court in Indian Bank (supra), inherent powers spring not from legislation but from the nature and conservation of the authorities, to enable them to maintain their dignity, secure obedience to process and ensure transparency. This Court is able to place its hands on two decisions of the Supreme Court, in which the administrative authorities rectified their earlier orders on the ground of fraud and the same received approval by the Supreme Court. These are District Collector and Chairman, Vizianagaram v. M. Tripurasundari Devi and Union of India v. M. Bhaskaran 1995 Supp (4) SCC 100. In District Collector and Chairman, Vizianagaram (supra), persons who are not qualified were appointed as clerks in the District Administration ignoring the claims of those who were qualified. The Supreme Court held that appointment of an unqualified person amounts to fraud and therefore, such appointments can be withdrawn. The relevant observations are as under: It must further be realized by all concerned that when an advertisement mentions a particular qualification and an appointment is made in disregard to the same, it is not a matter only between the appointing authority and the appointee concerned. The aggrieved are all those who had similar or even better qualifications than the appointee or appointees but who had not applied for the post because they did not possess the qualifications mentioned in the advertisement. It amounts to a fraud on public to appoint persons with inferior qualifications in such circumstances unless it is clearly stated that the qualifications are relaxable. No Court should be a party to the perpetuation of the fraudulent practice.


It is therefore axiomatic that in India, the judicial, quasi judicial and administrative authorities have inherent powers to recall their orders or proceedings at a latter point of time if it is shown that such order was obtained by playing fraud and misrepresentation. The question of applicability of law of limitation to exercise such inherent power by the administrative authorities does not arise because fraud unravels everything rendering a fraudulent order void and non-existent. To our mind, this principle in a different manner is also adumbrated in Section 21 of General Clauses Act, 1897 (Central Act No. X of 1897). Under the said provision, an authority who has power to issue, inter alia orders has also power to rescind such order. Further, the Rule 117 of Registration Rules permits the registration of cancellation deed in the same class of register book as that in which original document which it cancels has to be registered. It is clearly not possible to accept the submission that Registering Officer has no power to accept and register a cancellation deed cancelling the earlier sale deed. Such an interpretation would not subserve public interest and if the Registering Officer is not given such power, it would further harm public interest and public policy. Nobody can deny that in a civilized society regulated by rule of law, the person with valid title must have the liberty to enjoy his property and such liberty cannot be deprived of without proper procedure under law.


The person, who has ex facie right whether such right is registered or not can always approach the registering authority, with a request to cancel a sale deed, which was registered earlier by such registering authority by showing that subsequent registration was obtained by fraud by a person who is not entitled to transfer the property or that such transfer was registered by playing fraud on the owner or on the stranger. In the present statutory dispensation, namely Transfer of Property Act, Contract Act, Specific Relief Act and Registration Act, the Court does not see any prohibition operating on the exercise of inherent power by the registering authority to cancel the sale deed earlier registered, which is likely to cause prejudice to the true owner as well as to the entire public at large.

In Gujarat Bottling Co. Ltd. & Ors Vs. Coca Cola Co. & Ors it SC has held that:- "The grant of an interlocutory injunction during the pendency of legal proceedings is a matter requiring the exercise of discretion of the court. While exercising the discretion the court applies the following tests - (i) whether the plaintiff has a prima facie case; (ii) whether the balance of convenience is in favour of the plaintiff; and (iii) whether the plaintiff would suffer an irreparable injury if his prayer for interlocutory injunction is disallowed. The decision whether or not to grant an interlocutory injunction has to be taken at a time when the existence of the legal right assailed by the plaintiff and its alleged violation are both contested and uncertain and remain uncertain till they are established at the trial on evidence. Relief by way of interlocutory injunction is granted to mitigate the risk of injustice to the plaintiff during the period before that uncertainty could be resolved. The object of the interlocutory injunction is to protect the plaintiff gainst injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial. The need for such protection has, however, to be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated."

SC strongly disapproves of GPA sales

Strongly disapproving of the sale of immovable properties through general power of attorney (GPA), agreement to sell and will, the Supreme Court has declared that such sales of property are not only illegal, but also cause huge loss of revenue to the state exchequer, besides encouraging the real estate mafia and their musclemen to indulge in fraudulent sale of properties to more than one purchaser.

A bench comprising Justices R V Raveendran and J M Panchal also issued notices to the Union government and the states of Punjab, Haryana, Delhi, Uttar Pradesh and Maharashtra seeking details of the steps taken or proposed to be taken by the respective states to deal with the chaotic situation arising from such transactions.

The apex court, while directing the matter to be listed for hearing in the last week of August, has also directed the states to inform the court whether power of attorney sales (that is, transactions involving execution of sales agreement/GPA/will) instead of regular sales are prevalent in their respective states and sought the views of the respective state governments in respect of such transactions.

Justice Raveendran, writing a 13-page judgement for the bench noted, "whatever be the intention, the consequences are disturbing and far-reaching, adversely affecting the economy, civil society and law and order.

Firstly, it enables large-scale evasion of income tax, wealth tax, stamp duty, and registration fees, thereby denying the benefit of such revenue to the government and the public.

Secondly, such transactions enable persons with undisclosed wealth/income to invest their black money and also earn profit/ income, thereby encouraging circulation of wealth, and corruption.

This kind of transaction has disastrous collateral effects also. For example, when the market value increases, many vendors (who effected power of attorney sales without registration) are tempted to re-sale the property taking advantage of the fact that there is no registered instrument or record in any public office, thereby cheating the purchaser.

When the purchaser under such 'power of attorney sales' comes to know about the vendor section, he invariably tries to take the help of musclemen to sort out the issue and protect his rights.

On the other hand, real estate mafia many-a-times purchase properties which are already subject to power of attorney sales and then threaten the previous power of attorney sales purchasers from asserting their rights.

Either way, such power of attorney sales indirectly leads to growth of real estate mafia and criminalisation of real estate transactions."

Why Police are failing to Register FIR even on complaint is they ignorant of law

In recent days there is increased negligence of police to register FIR on the basis of complaint. They are becoming more puppets under the hands of politicians rather than enforcers of law. I have collected observations of Karnataka High Court and Supreme Court of India regarding such matter in order to guide so many litigants desperately seeking their further step on such situations.

"Although it may not be strictly necessary for a complainant to approach the police before filing an application under Section 156(3) Cr.P.C, but as a matter of convenience and expedition, normally every genuine complainant first attempts to lodge an FIR at the police station. Thus most applications invoking Section 156(3) contain the averment that the police have (wrongly) refused to register the FIR of the cognizable offence. Section 154(1) makes it obligatory for officers in charge of
police stations to register FIRs of cognizable offences. If the officer in charge of police station refused to do so, the complainant has the remedy under Section 154(1) Cr.P.C. to send the substance of the FIR to the Superintendent of Police by post who has the power to investigate the offence himself or depute a subordinate officer to investigate. Experience shows that very few complainants avail of this right under
Section 154(1) Cr.P.C., apparently due to lack of knowledge. If even the Superintendent of Police also fails to act, in such a situation a complainant, if he wishes to pursue the matter further, adopts one of the following two alternatives. Either he seeks a direction under Section 156(3) Cr.P.C. or he files complaint under
Chapter XV Cr.P.C. before the Magistrate. The causes for non-registration of FIR at police stations in cognizable case can vary widely. The overworked police may be indifferent to the common man's woes, the accused may be influential, registering of FIRs may be refused to keep the crime statistics of that police station low. Also, in some cases the police may be aware of the true state of affairs and may refuse to register false or pre-emptive FIRs." Says Allahabad High Court in a case decided in 2002.

The court further observed that The scheme of Cr.P.C. and the prevailing circumstances require that the option to direct the registration of the case and its investigation by the police should be exercised where some "investigation" is required, which is of a nature that is not possible for the private complainant, and which can only be done by the police upon whom statute has conferred the powers essential for investigation, for example .
(1) where the full details of the accused are not known to the complainant and the same can be determined only as a result of investigation, or

(2) where recovery of abducted person or stolen property is required to be made by conducting raids or searches of suspected places or persons, or

(3) where for the purpose of launching a successful prosecution of the accused evidence is required to be collected and preserved. To illustrate by example cases may be visualised where for production before Court at the trial (a) sample of blood soaked soil is to be taken and kept sealed for fixing the place of incident; or (b) recovery of case property is to be made and kept sealed; or (c) recovery under Section 27 of the Evidence Act; or (d) preparation of inquest report; or (e) witnesses are not known and have to be found out or discovered through the process of investigation.


In the case of Ramesh Kumari v. State (NCT of Delhi) and Ors. (2006) 2 SCC 677 this Court has held that the provision of Section 154 is mandatory. Hence, the police
officer concerned is duty-bound to register the case on receiving information disclosing cognizable offence. Genuineness or credibility of the information is not a condition precedent for registration of a case. That can only be
considered after registration of the case. The mandate of Section 154 of the Code is that at the stage of registration of a crime or a case on the basis of the
information disclosing a cognizable offence, the police officer concerned cannot embark upon an enquiry as to whether the information, laid by the informant is reliable and genuine or otherwise and refuse to register a case on the ground that the information is not relevant or credible. In other words, reliability, genuineness and credibility of the information are not the conditions precedent for registering a case under Section 154 of the Code.


It is pointed out that in Ramesh Kumari v. State (NCT of Delhi) and Ors. (AIR
2006 SC 1322) this Court had said that whenever cognizable offence is disclosed the police officials are bound to register the same and in case it is not done, directions to register the same can be given.

"If you once forfeit the confidence of our fellow citizens you can never regain their respect and esteem. It is true that you can fool all the people some of the time, and some of the people all the time, but you cannot fool all the people all the time", Said Abraham Lincoln. Supreme Court of India in Raghubir Singh v. State of Haryana (AIR 1980 SC 1087), took note of these immortal observations while deprecating custodial torture by the police. If it is assuming alarming proportions, now a days, all around it is merely on account of the devilish devices adopted by those at the helm of affairs who proclaim from roof tops to be the defenders of democracy and protectors of peoples' rights and yet do not hesitate to condescend behind the screen to let loose their men in uniform to settle personal scores, feigning ignorance of what happens and pretending to be peace loving puritans and saviours of citizens' rights. Supreme Court of India has in a large number of cases expressed concern at the atrocities perpetuated by the protectors of law. Justice Brandies's observation which have become classic are in following
immortal words: "Government as the omnipotent and omnipresent teacher teaches the whole people by its example, if the Government becomes a law breaker, it breeds contempt for law, it invites every man to become a law into himself".

Justice ARIJIT PASAYAT, J. said in a case of 2003 before Supreme Court of India Police excesses and the maltreatment of detainees/under- trial prisoners or suspects
tarnishes the image of any civilised nation and encourages the men in 'Khaki' to consider themselves to be above the law and sometimes even to become law unto themselves. Unless stern measures are taken to check the malady of the very fence eating the crops, the foundations of the criminal justice delivery system would be shaken and the civilization itself would risk the consequence of heading, towards total decay resulting in anarchy and authoritarianism reminiscent of barbarism. The courts must, therefore, deal with such cases in a realistic manner and with the sensitivity which they deserve, otherwise the common man may tend to gradually
lose faith in the efficacy of the system of judiciary itself, which if it happens will be a sad day, for any one to reckon with.


In a Judgement pronounced in High Court of Karnataka in 1998 itself it was observed that "Corruption in a civilised society is a disease like cancer, which if not detected in time is sure to malignise the polity of country leading to disastrous consequences. It is termed as plague which is not only contagious but if not controlled spreads like a fire in a jungle. Its virus is compared with HIV leading to AIDS, being incurable. It has also been termed as Royal thievery. The socio-political system exposed to such a dreaded communicable disease is likely to crumble under its own weight. Corruption is opposed to democracy and social order, being not only anti people, but aimed and targeted against them. It affects the economy and destroys the cultural heritage. Unless nipped in the bud at the earliest, it is likely to cause turbulence shaking of the socio- economic-political system in an otherwise healthy, wealthy, effective and vibrating society."

CLARIFICATION REGARDING A KHARAB AND B KHARAB LAND

Kharab land is so called because it is not cultivable and is classification made for purposes of revenue exemption, Kharab land is also capable of ownership and cannot be regarded as an adjunct to cultivable land which gets transferred along
with the cultivable land. Acquisition of title to the kharab land is similar to acquisition of title to the cultivable land.

The word "Phut Kharab" and 'pot' kharab mean and have reference to a land which is
included in an assessed survey number but which is unflit for cultivation. Every pot kharab land does not belong to government. For the purpose of assessment, the uncultivable portion of the land or phut kharab portion of the land is excluded from consideration on the ground that it is cultivable. But it does not cease to belong to the owner of the survey number. In volume I of the Mysore Revenue Manual, the word kharab is explained in this way. The expression 'phut kharab' is similar to the expression 'pot kharab'. That is so, is clear from the Mysore Revenue Survey Manual where at page 68 the words 'pot kharab' land is defined thus: "(13). Pot kharab means a piece of pieces of land classed as unarable and included in a survey number".



The words phut Kharab, therefore, mean and have reference to a land which is included in an assessed survey number but which is unfit for cultivation.

After coming into the force of the Karnataka Land Revenue Act 1964 the word phut Kharab has been defined under Rule 21(2) as under- "during the process of classification, land included as unarable shall be treated as "Pot Kharab". Pot Kharab land may be classified as follows.
(a) That which is classified as unfit for agriculture at the time of survey including the farm buildings or threshing flours of the holder;

(b) That which is not assessed because, (i) it is reserved or assigned for public purpose; (ii) it is occupied by a road or recognised footpath or by a tank or stream used by persons other than the holders for irrigation, drinking or domestic purposes; (iii) used as burial ground or cremation ground; (iv) assigned for villager potteries."




Therefore, it becomes clear if the land falls within the category of 21(2)(a) (A KHARAB) it is not a government land, it belongs to the ownership of the land owner. If it falls under 21(2)(b) (B KHARAB) then it belongs to the government and the land owner cannot have a claim over the said land.

OBSERVATIONS OF COURT’S REGARDING SC/ST PTCL ACT CASES

B.K. MUNIRAJU v. STATE OF KARNATAKA & ORS
CASE NO.: Appeal (civil) 1320 of 2008
DATE OF JUDGMENT: 15/02/2008
BENCH: Tarun Chatterjee & P. Sathasivam

We have already referred to the recitals in the document produced before the High Court which though titled as certificate of grant/Saguvali chit, various terms and conditions make it clear that the land was purchased by Motappa in a public auction on payment of a price for Rs.408.12. In addition, the two authorities as well as the High Court adverted to the revenue extract and concluded that it was not a "granted land" and it was purchased in a public auction on payment of a price. In the light of the factual conclusion, we are satisfied that the High Court has rightly refused to quash the orders of the said authorities and dismissed the writ petition. If the factual finding that the subject-matter of the land was a "granted land" undoubtedly it attracts bar under Section 4 of the Act and follow the conditions as stated in Rule 43 (1) (5) and (8). (17)



The document in question which is filed as Annexure P-3, has been styled or titled as "Certificate of Grant". In order to know the real nature of the document, one has to look into the recitals of the document and not the title of the document. The intention is to be gathered from the recitals in the deed, the conduct of the parties and the evidence on record. It is settled law that the question of construction of a document is to be decided by finding out the intention of the executant, firstly, from a comprehensive reading of the terms of the document itself, and then, by looking into to the extent permissible : the prevailing circumstances which persuaded the author of the document to execute it. With a view to ascertain the nature of a transaction, the document has to be read as a whole. A sentence or term used may not be determinative of the real nature of transaction. Reference in this regard can be made to the following cases i.e. Vidhyadhar vs. Manikrao & Anr., (1999) 3 SCC 573, Subbegowda (Dead) by LR. vs. Thimmegowda (Dead) by LRs., (2004) 9 SCC 734 and Bishwanath Prasad Singh vs. Rajendra Prasad & Anr., (2006) 4 SCC 432.



BHADRAPPA (D) BY LRS. v. TOLACHA NAIK
CASE NO.: Appeal (civil) 7782 of 2001
DATE OF JUDGMENT: 08/01/2008
BENCH: Dr. ARIJIT PASAYAT & P. SATHASIVAM

In Guntaiah and Ors. v. Hambamma and Ors. (2005 (6) SCC 228 at para 14) it was noted as follows: "It is also pertinent to note that the prohibition regarding alienation is a restrictive covenant binding on the grantee. The grantee is not challenging that condition. In all these proceedings, challenge is made by the third party who purchased the land from the grantee. The third party is not entitled to say that the conditions imposed by the grantor to the grantee were void. As far as the contract of sale is concerned, it was entered into between the Government and the grantee and at that time the third-party purchaser had no interest in such transaction. Of course, he would be entitled to challenge the violation of any statutory provisions but if the grant by itself specifically says that there shall not be any alienation by the grantee for a period of 15 years, that is binding on the grantee so long as he does not challenge that clause, more so when he purchased the land, in spite of being aware of the condition.


When Act 2 of 1979 was challenged, this Court observed in Manchegowda v. State of Karnataka (SCC pp. 310-11, para 17) "17.Granted lands were intended for the benefit and enjoyment of the original grantees who happen to belong to the Scheduled Castes and Scheduled Tribes. At the time of the grant, a condition had been imposed for protecting the interests of the original grantees in the granted lands by restricting the transfer of the same. The condition regarding the prohibition on transfer of such granted lands for a specified period, was imposed by virtue of the specific term in the grant itself or by reason of any law, rule or regulation governing such grant. It was undoubtedly open to the grantor at the time of granting lands to the original grantees to stipulate such a condition the condition being a term of the grant itself, and the condition was imposed in the interests of the grantee. Except on the basis of such a condition the grantor might not have made any such grant at all. The condition imposed against the transfer for a particular period of such granted lands which were granted essentially for the benefit of the grantees cannot be said to constitute any unreasonable restriction. The granted lands were not in the nature of properties acquired and held by the grantees in the sense of acquisition, or holding of property within the meaning of Article 19(1)( f ) of the Constitution. It was a case of a grant by the owner of the land to the grantee for the possession and enjoyment of the granted lands by the grantees and the prohibition on transfer of such granted lands for the specified period was an essential term or condition on the basis of which the grant was made. It has to be pointed out that the prohibition on transfer was not for an indefinite period or perpetual. It was only for a particular period, the object being that the grantees should enjoy the granted lands themselves at least for the period during which the prohibition was to remain operative. Experience had shown that persons belonging to Scheduled Castes and Scheduled Tribes to whom the lands were granted were, because of their poverty, lack of education and general backwardness, exploited by various persons who could and would take advantage of the sad plight of these poor persons for depriving them of their lands. The imposition of the condition of prohibition on transfer for a particular period could not, therefore, be considered to constitute any unreasonable restriction on the right of the grantees to dispose of the granted lands. The imposition of such a condition on prohibition in the very nature of the grant was perfectly valid and legal."



KALIYAMMA & ORS. v. DEPUTY COMMNR.CHITRADURGA DISTT. & ORS.
CASE NO.: Appeal (civil) 7875-7876 of 2001
DATE OF JUDGMENT: 03/01/2008
BENCH: Dr. ARIJIT PASAYAT & P. SATHASIVAM


The Assistant Commissioner came to hold that when the grant was in favour of general category, the allotment was in Form-I and when it is in the name of persons belonging to the Schedule Castes and Schedule Tribes, it is in Form II.

Legal representatives of the grantee filed appeal under Section 5A of the Act before the Deputy Commissioner. The said Authority allowed the appeal and set aside the order of the Assistant Commissioner holding that in these cases grant has been made during 1957 under the Land Revenue Code and the right of possession in respect of the grantee is limited. It was noticed that there was a condition not to alienate the land in question for a period of 10 years. In these cases the alienation took place much before completion of the ten years' period. Since the land was alienated during the non-alienable period, the land vested with the Government. It was also noticed that the period would be 30 years (for adverse possession) and not 12 years as contented.

The matter was challenged by the appellants before the learned Single Judge who dismissed the writ petition but inter alia directed as follows: "Whether respondents 2 & 3 have been the legal heirs of the grantee either as sons or adopted sons or in any manner under the law. That question has yet to be decided by the Assistant Commissioner when he has to restore the land to the grantee or his heirs in pursuance of the appellate order. Before actual delivering and restoring possession, the Assistant Commissioner should examine this question and if grantee or heirs are found in possession, the possession has to be restored to them. But if it is not practicable and possible to restore possession of the granted land to the grantee or his heirs under Section 5(1)(b) later part will automatically stand vested in the Government."


MANCHEGOWDA ETC. v. STATE OF KARNATAKA ETC.PETITIONER: MANCHEGOWDA ETC.
DATE OF JUDGMENT17/04/1984
AIR 1984 SC 1151

Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978, Sections 4 & 5, constitutional validity-Whether the prohibition of transfer of granted lands and Resumption or restitution thereof without payment of compensation or providing any appeal for such orders of resumption violates Art. 19 (1) (f), 31 and 31A of the Constitution-Whether making such special provisions only with regard to Scheduled Castes and Scheduled Tribes to the exclusion of persons belonging to other communities, violated Art. 14 of the Constitution.

The High Court of Karnataka for reasons recorded as quoted below in the Judgment upheld the validity of the Act and dismissed the petitions.

Sections 4 & 5 of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfers of Certain Lands) Act, 1978 is constitutionally valid.

However, the provisions of the Act must be read down and held that the Act will apply to transfers of granted lands made in breach of the condition imposing prohibition of transfer of granted lands only in those cases where the title acquired by the transferee was still voidable at the date of the commencement of the Act and had not lost its defeasible character at the date when the Act came into force. Transferees of granted land having a perfected and not a voidable title at the commencement of the Act must be held to be outside the pale of the provisions of the Act. S. 4 of the Act must be so construed as not to have the effect of rendering void the title of any transferee which was not voidable at the date of the commencement of the Act. Granted lands which had been transferred after the expiry of the period of prohibition do not come within the purview of the Act, and cannot be proceeded against under the provisions of this Act.

The provisions of the Act make this position clear, as ss. 4 & 5 become applicable only when granted lands are transferred in breach of the condition relating to prohibition of such lands. Granted lands transferred before the commencement of the Act and not in contravention of prohibition on transfer are clearly beyond the scope and purview of the present Act. Also in case where granted lands had been transferred before the commencement of the Act in violation of the condition regarding prohibition on such transfer and the transferee who had initially acquired only a voidable title in such granted lands had perfected his title in the granted lands by prescription by long and continuous enjoyment thereof in accordance with law before the commencement of the Act, such granted lands would also not come within the purview of the present Act, as the title of such transferees to the granted lands has been perfected before the commencement of the Act. Since at the date of the commencement of the Act the title of such transferees had ceased to be voidable by reason of acquisition of prescriptive rights on account of long and continued user for the requisite period, the title of such transferees could not be rendered void by virtue of the provisions of the Act without violating the constitutional guarantee. the provisions of appeal has been incorporated by the Amending Act which received the assent of the Governor on the 29th February, 1984 and first came to be published in the Karnataka Gazette Extraordinary on the 3rd day of March, 1984, the Deputy Commissioner to whom the appeal will be presented will no doubt take this fact into consideration in deciding the question of limitation in regard to any appeal which may be filed against an order of the Assistant Commissioner; if any appeal is preferred within a period of three months from the date the amended provision conferring the right of appeal came into force, the Deputy Commissioner taking into consideration the fact that a period of three months has been prescribed for preferring an appeal from the date of the order of the Assistant Commissioner, may have no difficulty in entertaining the appeal by condoning the deal under s. 5 of the Limitation Act in terms of the power conferred on the Deputy Commissioner under the said s. 5A, provided the Deputy Commissioner is satisfied that the appeal is otherwise maintainable and the interest of justice requires that the appeal should be entertained and not be thrown out on the ground of limitation.


It is no doubt true that before the passing of the present Act any transfer of granted land in breach of the condition relating to prohibition on such transfer would not have the effect of rendering the transfer void and would make any such transfer only voidable. But the State, consistently with the directive principles of the Constitution, has made it a policy and very rightly, to preserve, protect and promote the interest of the Scheduled Castes and Scheduled Tribes which by and large form the weaker and poorer sections of the people in our country. This may be said to be the declared policy of the State and the provisions seeking to nullify such transfers is quite in keeping with the policy of the State which may properly be regarded as public policy for rendering social and economic justice to these weaker sections of the society.


In pursuance of this policy, the legislature is undoubtedly competent to pass an enactment providing that transfers of such granted lands will be void and not merely voidable for properly safeguarding and protecting the interests of the Scheduled Castes and Scheduled Tribes for whose benefit only these lands had been granted. Even under the Contract Act, any Contract which is opposed to public policy is rendered void.


Even in the absence of any such statutory provisions, the transfer of granted lands in contravention of the terms of the grant or in breach of any law, rule or regulation covering such grant will clearly be voidable and the resumption of such granted lands after avoiding the voidable transfers in accordance with law will be permitted. Avoidance of such voidable transfers and resumption of the granted lands through process of law is bound to take time Any negligence and delay on the part of the authorities entitled to take action to avoid such transfers through appropriate legal process of law is bound to take time. Any negligence and dealy on the part of the authorities entitled to take action to avoid such transfers through appropriate legal process for resumption of such grant may be further impediments in the matter of avoiding such transfers and resumption of possession of the granted lands. Prolonged legal proceedings will undoubtedly be prejudicial to the interests of the members of the Scheduled Castes and Scheduled Tribes for whose benefit the granted lands are intended to be resumed.

As transfers of granted lands in contravention of the terms of the grant or any law, regulation or rule governing such grants can be legally avoided and possession of such lands can be recovered through process of law the Legislature for the purpose of avoiding delay and harassment of protracted litigation and in furthering its object of speedy restoration of these granted lands to the members of the weaker communities is perfectly competent to make suitable provision for resumption of such granted lands by stipulating in the enactment that transfers of such lands in contravention of the terms of the grant or any regulation, rule or law regulating such grant will be void in providing a suitable procedure consistent with the principles of natural justice for achieving this purpose without recourse to prolonged litigation in Court in the larger interests of benefiting the members of the Scheduled Castes and Scheduled Tribes.



Any person who acquires such granted land by transfer from the original grantee in breach of the condition relating to prohibition on such transfer must necessarily be presumed to be aware of the prohibition imposed on the transfer of such granted land, and they cannot be considered to be a bona fide purchaser for value; and every such transferee acquires to his knowledge only avoidable title to the granted land. The title acquired by such transfer is defeasible and is liable to be defeated by an appropriate action taken in this regard. If the Legislature under such circumstances seek to intervene in the interests of these weaker sections of the community and choose to substitute a speedies and cheaper method or recovery of these granted lands which were otherwise liable to be resumed through legal process, it cannot be said that any vested rights of the transferees are affected. Transferees of granted lands with full knowledge of the legal position that the transfers made in their favour in contravention of the terms of grant or any law, rule or regulation governing such grant are liable to be defeated in law, cannot and do not have in law or equity, a genuine or real grievance that their defeasible title in such granted lands so transferred is, in fact, being defeated and they are being dispossessed of such lands from which they were in law liable to be dispossessed by process of law.



The position will, however, be somewhat different where the transferees have acquired such granted lands not in violation of any term of the grant of any law regulating such grant as also where any transferee who may have acquired a defeasible title in such granted lands by the transfer thereof in contravention of the terms or the grant or any law regulating such grant has perfected his title by prescription of time or otherwise.


But where the transferee acquires only a defeasible title liable to be defeated in accordance with law, avoidance of such defeasible title which still remains liable to be defeated in accordance with law at the date of commencement of the Act and recovery of the possession of such granted land on the basis of the provisions contained in ss. 4 & 5 of the Act cannot be said to be constitutionally invalid and such provision cannot be termed as unconscionable, unjust and arbitrary.


Granted lands were intended for the benefit and enjoyment of the original grantees who happen to belong to the Scheduled Castes and Scheduled Tribes. The condition imposed against the transfer for a particular period of such granted lands which were granted essentially for the benefit of the grantees cannot be said to constitute any unreasonable restriction. The granted lands were not in the nature of properties acquired and held by the grantees in the sense of acquisition, or holding or property within the meaning of Art. 19 (1) (f) of the Constitution. It was a case of a grant by the owner of the land to the grantee for the possession and enjoyment of the granted lands by the grantees and the prohibition on transfer of such granted lands for the specified period was an essential term or condition on the basis of which the grant was made. The prohibition on transfer was not for an indefinite period or perpetual. It was only for a particular period, the object being that the grantees should enjoy the granted lands themselves at least for the period during which the prohibition was to remain operative. Persons belonging to scheduled castes and scheduled tribes to whom the lands were granted were, because of their poverty, lack of education and general backwardness, exploited by various persons who could and would take advantage of bona fide the said plight of these poor persons for depriving them of their lands. The imposition of the condition of prohibition on transfer for a particular period could not, therefore, be considered to constitute any unreasonable restriction on the right of the grantees to dispose of the granted lands. The imposition of such a condition on prohibition in the very nature of the grant was perfectly valid and legal.



The transferees of the granted lands from the original grantees, acquired the lands improperly and illegally in contravention of the condition imposed on such transfers. Such transferees must have been aware and must in any event be deemed to have been aware of the condition regarding the prohibition on transfer and they cannot be considered to be bona fide transferees for value. Such persons acquired in the granted lands only avoidable title which was liable to be defeated and possession of such lands could be resumed from such transferees. Such a person who only acquires a defeasible legal right cannot make a grievance of any violation of Art. 19 (1) (f) of the Constitution, when the defeasible legal right is, in fact, defeated by appropriate legal action or by any suitable provision enacted in an Act passed by the competent legislature. Further in most cases such transferees have after the transfer, which is liable to be avoided in accordance with law, enjoyed for a sufficiently long period the benefits of lands transferred to them before the lands could be recovered from them Art. 19 (1) (f), therefore, did not invalidate s. 4 of the Act.



The right or property which a transferee acquires in the granted lands, is a defeasible right and the transferee renders himself liable to lose his right or property at the instance of the grantor. This kind of defeasible right of the transferee in the granted lands cannot be considered to be property as contemplated in art. 31 and 31A. The nature of the right of the transferee in the granted lands on transfer of such lands in breach of the condition prohibition relating to such transfer, the object of such grant and the terms therefore, also the law governing such grants and the object and the scheme of the presents Act enacted for the benefit of the weaker sections of our community, clearly go to indicate that there is in this case no deprivation of such right or property as may attract the provisions of Art. 31 and 31A of the Constitution. With the enactment of the Act, the, voidable right or title of the transferee in the grant lands becomes void and the transferee is left with no right or property in the granted lands. The lands which are sought to be recovered from the transferees of the granted lands are lands in which the transferees cease to have any interest or property. The effect of the provisions contained in ss. 4 & 5 of the Act is that the defeasible right or interest of the transferees in the granted lands is defeated and the voidable transaction is rendered void. As soon as such transferees are rendered void by virtue of the provisions of the Act transferee does not have any right in the granted lands so transferred, and possession is sought to be recovered of such lands in which the transferees have lost their right and interest. Therefore, the question of acquisition of any property by the State or any modification or extinguishment of right of property does not really arise and Art. 31A cannot be applied. Therefore, there is no infringement of Arts. 31 & 31A of the Constitution.



The special provisions made for the resumption of granted lands originally granted to the members of Scheduled Castes and Scheduled Tribes and resoration of the same to the original grantees or their heirs and legal representatives and falling them to other members of these communities do not infringe Art. 14 of the Constitution. This Act has undoubtedly been passed for the benefit of members of the Scheduled Castes and Scheduled Tribes who are recognised as backward citizens and weaker sections in the country. There cannot be any manner of doubt that persons belonging to Scheduled Castes and Scheduled Tribes can be considered to be separate and distinct classes particularly in the matter of preservation and protection of their economic and educational interests. In view of the peculiar plight of these two classes, the Constitution in Art. 15 (4) makes specific mention of these two classes and in Art.16 (4) speaks of backward class of citizens. One of the directive principles as contained in Art. 46 of the Constitution enjoins that "the State shall promote with special care and educational and economic interests of the weaker sections of the people and in particular of the Scheduled Castes and Scheduled Tribes and shall protect them from social injustice and all forms of exploitation." The object of this Act is to protect and preserve the economic interests of persons belonging to Schedule Castes and Scheduled Tribes and to prevent their exploitation. For the purpose of the present Act, the classification has a clear nexus to the object sought to be achieved.


SC BY UPHOLDING AND QUOTING ABOVE OBSERVATIONS STATED FURTHER THAT :-

Any person who acquires such granted land by transfer from the original grantee in breach of the condition relating to prohibition on such transfer must necessarily be presumed to be aware of the prohibition imposed on the transfer of such granted land. Anybody who acquires such granted land in contravention of the prohibition relating to transfer of such granted land cannot be considered to be a bona fide purchaser for value and every such transferee acquires to his knowledge only a voidable title to the granted land. The title acquired by such transfer is defeasible and is liable to be defeated by an appropriate action taken in this regard. If the Legislature under such circumstances seek to intervene in the interests of these weaker sections of the community and choose to substitute a speedier and cheaper method of recovery of these granted lands which were otherwise liable to be resumed through legal process, it cannot, in our opinion, be said that any vested rights of the transferees are affected. Transferees of granted lands with full knowledge of the legal position that the transfers made in their favour in contravention of the terms of grant or any law, rule or regulation governing such grant are liable to be defeated in law, cannot and do not have in law or equity, a genuine or real grievance that their defeasible title in such granted lands so transferred is, in fact, being defeated and they are being dispossessed of such lands from which they were in law liable to be dispossessed by process of law. The position will however, be somewhat different where the transferees have acquired such granted lands not in violation of any term of the grant or any law regulating such grant as also where any transferee who may have acquired a defeasible title in such granted lands by the transfer thereof in contravention of the terms of the grant or any law regulating such grant has perfected his title by prescription of time or otherwise. We shall consider such cases later on. But where the transferee acquires only a defeasible title liable to be defeated in accordance with law, avoidance of such defeasible title which still remains liable to be defeated in accordance with law at the date of commencement of the Act and recovery of possession of such granted land, on the basis of the provisions contained in s. 4 and s. 5 of the Act cannot be said to be constitutionally invalid and such a provision cannot be termed as unconscionable, unjust and arbitrary.


Granted lands were intended for the benefit and enjoyment of the original grantees who happen to belong to the Scheduled Castes and Scheduled Tribes. At the time of the grant a condition had been imposed for protecting the interests of the original grantees in the granted lands by restricting the transfer of the same. The condition regarding the prohibition on transfer of such granted lands for a specified period, was imposed by virtue of the specific term in the grant itself or by reason of any law, rule or regulation governing such grant. It was undoubtedly open to the grantor at the time of granting lands to the original grantees to stipulate such a condition the condition being a term of the grant itself, and the condition was imposed in the interests of the grantee. Except on the basis of such a condition the grantor might not have made any such grant at all. The condition imposed against the transfer for a particular period of such granted lands which were granted essentially for the benefit of the grantees cannot be said to constitute any unreasonable restriction. The granted lands were not in the nature of properties acquired and held by the grantees in the sense of acquisition, or holding of property within the meaning of Art. 19(1)(f) of the Constitution. It was a case of a grant by the owner of the land to the grantee for the possession and enjoyment of the granted lands by the grantees and the prohibition on transfer of such granted lands for the specified period was an essential term or condition on the basis of which the grant was made. It has to be pointed out that the prohibition on transfer was not for an indefinite period or perpetual. It was only for a particular period, the object being that the grantees should enjoy the granted lands themselves at least for the period during which the prohibition was to remain operative. Experience had shown that persons belonging to scheduled castes and scheduled tribes to whom the lands were granted were, because of their poverty, lack of education and general backwardness, exploited by various persons who could and would take advantage of the sad plight of these poor persons for depriving them of their lands. The imposition of the condition of prohibition on transfer for a particular period could not, therefore, be considered to constitute any unreasonable restriction on the right of the grantees to dispose of the granted lands. The imposition of such a condition on prohibition in the very nature of the grant was perfectly valid and legal.


Though we have come to the conclusion that the Act is valid, yet, in our opinion, we have to make certain aspects clear. Granted lands which had been transferred after the expiry of the period of prohibition do not come within the purview of the Act, and cannot be proceeded against under the provisions of this Act. The provisions of the Act make this position clear, as ss. 4 and 5 become applicable only when granted lands are transferred in breach of the condition relating to prohibition on transfer of such granted lands. Granted lands transferred before the commencement of the Act and not in contravention of prohibition on transfer are clearly beyond the scope and purview of the present Act. Also in case where granted lands had been transferred before the commencement of the Act in violation of the condition regarding prohibition on such transfer and the transferee who had initially acquired only a voidable title in such granted lands had perfected his title in the granted lands by proscription by long and continuous enjoyment thereof in accordance with law before the commencement of the Act, such granted lands would also not come within the purview of the present Act, as the title of such transferees to the granted loads has been perfected before the commencement of the Act. Since at the date of the commencement of the Act the title of such transferees had ceased to be voidable by reason of acquisition of prescriptive rights on account of long and continued user for the requisite period; the title of such transferees could not be rendered void by virtue of the provisions of the Act without violating the constitutional guarantee. We must, therefore, read down the provisions of the Act by holding that the Act will apply to transfers of granted lands made in breach of the condition imposing prohibition on transfer of granted lands only in those cases where the title acquired by the transferee was still voidable at the date of the commencement of the Act and had not lost its defeasible character at the date when the Act came into force. Transferees of granted lands having a perfected and not a voidable title at the commencement of the Act must be held to be outside the pale of the provisions of the Act. S. 4 of the Act must be so construed as not to have the effect of rendering void the title of any transferee which was not voidable at the date of the commencement of the Act.







K.T. HUCHEGOWDA v. DEPUTY COMMISSIONERPETITIONER: K.T. HUCHEGOWDA
DATE OF JUDGMENT18/03/1994
BENCH: SINGH N.P. (J), AHMADI, A.M. (J), YOGESHWAR DAYAL (J)
1994 SCC (3) 536

On a plain reading, granted land will mean, any land granted by the Government to a person, who is a member of the Scheduled Castes or Scheduled Tribes which includes land allotted to such persons. Grant may be of different types; it may be by absolute transfer of the interest of the State Government to the person concerned; it may be only by transfer of the possession of the land, by way of allotment, without conveying the title over such land of the State Government. If by grant, the transferee has acquired absolute title to the land in question from the State Government, then subject to protection provided by the different provisions of the Act, he will be subject to the same period of limitation as is prescribed for other citizens by the provisions of the Limitation Act, in respect of extinguishment of title over land by adverse possession. On the other hand, if the land has been allotted by way of grant and the title remains with the State Government, then to extinguish the title that has remained of the State Government by adverse possession, by a transferee on the basis of an alienation made in his favour by an allottee, the period of limitation shall be 30 years. Incidentally, it may be mentioned that some of the States in order to protect the members of the Scheduled Tribes from being dispossessed from the lands which belong to them and of which they are absolute owners, for purpose of extinguishment of their title by adverse possession, have prescribed special period of limitation, saying that it shall be 30 years. In Bihar, vide Regulation No. 1 of 1969, in Article 65 of the Limitation Act, it has been prescribed that it would be 30 years in respect of immovable property belonging to a member of the Scheduled Tribes as specified in Part III to the Schedule to the Constitution (Scheduled Tribes) Order, 1950.


There is no dispute that so far as the Act with which we are concerned, no special period of limitation has been prescribed, in respect of lands which have been granted to the members of the Scheduled Castes and Scheduled Tribes with absolute ownership by the State Government. In this background, when this Court in the case of Sunkara Rajayalakshmi v. State of Karnataka' said that the period of limitation, which has to be taken into account for the purpose of determining, whether the title has been perfected by prescription, shall be that which runs against the State Government and therefore it would be 30 years and not 12 years, has to be read in context with the lands, the ownership whereof, has not been transferred absolutely, to the members of the Scheduled Castes and Scheduled Tribes; the lands having been only allotted to them, the title remaining with the State Government. The cases where the transfer by the State Government by way of grant has been absolute, then unless there is an amendment so far the period of limitation is concerned, it is not possible to apply the special limitation of 30 years, so far such grantees are concerned, when the question to be determined, is as to whether a transferee in contravention of the terms of the grant, has perfected his title by remaining in continuous and adverse possession. The transferee, who has acquired the land from the grantee, in contravention of the terms of the grant shall perfect his title by adverse possession by completing the period of 12 years.


When this Court said in its main judgment, in the case of Manchegowda v. State of Karnataka2 that in cases where granted lands had been transferred before the commencement of the Act in violation of the condition, regarding prohibition on such transfer and the transferee who had initially acquired only a voidable title, in such granted lands had perfected his title in the granted lands by prescription by long and continuous enjoyment thereof in accordance with law before the commencement of the Act, has to be read, for purpose, of determining the period of limitation in respect of lands granted with absolute ownership, to mean 12 years and grant by way of allotment without transfer of the ownership in favour of the grantee, to mean 30 years.



Court has to examine the claim made by the appellant on the materials produced in support of the said claim, especially the deed of grant in favour of the original grantee, for the purpose of recording a finding as to whether the grant was in the nature of absolute transfer of the title of the State Government in favour of the grantee or it was a mere allotment for enjoyment of the lands in question, the title having remained with the State Government.


It need not be pointed out that any claim made on behalf of the appellant, that the grant by the State Government in favour of the original grantee was in the nature of absolute grant, reserving no right, title and interest and that transferee has perfected his title by continuous and adverse possession over such transferred land, shall be examined taking into consideration, as to whether the appellant had raised this question at the earliest opportunity i.e. before the Assistant Commissioner and what material had been produced by the appellant before the Assistant Commissioner in support of such claim. It need not be impressed that the object and the scheme of the Act is to protect the interest of the members of the Scheduled Castes and Scheduled Tribes, who shall be deemed to be a weaker section of our community and the transfer in favour of the appellant admittedly being in contravention of the terms of the grant in favour of the original grantee, heavy onus rests on the appellant, to show to the court that by his continuous and adverse possession, the right, title and interest of the grantee has been extinguished before the commencement of the Act.

PLANNED DEVELOPMENT OF ALL CITIES STRESSED BY SUPREME COURT

In Friends Colony Development Committee v. State of Orissa and Others [(2004) 8 SCC 733], the SUPREME Court observed: "In all developed and developing countries there is emphasis on planned development of cities which is sought to be achieved by zoning, planning and regulating building construction activity. Such planning, though highly complex, is a matter based on scientific research, study and experience leading to rationalisation of laws by way of legislative enactments and rules and regulations framed thereunder. Zoning and planning do result
in hardship to individual property owners as their freedom to use their property in the way they like, is subjected to regulation and control. The private owners are to some extent prevented from making the most profitable use of their property. But for this reason alone the controlling regulations cannot be termed as arbitrary or unreasonable. The private interest stands subordinated to the public good. It
can be stated in a way that power to plan development of city and to regulate the building activity therein flows from the police power of the State. The exercise of such governmental power is justified on account of it being reasonably necessary for the public health, safety, morals or general welfare and ecological considerations; though an unnecessary or unreasonable intermeddling with the private ownership of the property may not be justified."

WHEN ASSISTANT COMMISSIONER COMES ACROSS ILLEGAL TRANSACTIONS THROUGH ANY NEWS PAPER REPORTS OPTIONS LEFT

1. The Assistant Commissioner exercises his powers under the chapter III of The Karnataka Land Revenue Act 1964 regarding any appeals, revision and review. As per Hon’ble High Court of Karnataka’s Decision in R.C.Puttaiah v/s The Deputy Commissioner & others Reported in 1989(2) Kar LJ page 9 “ Assistant Commissioner has no power to review his own order” The same view was expressed by Hon’ble High Court of Karnataka’s Decision in the case of M.Narayanappa v/s Hemavathi reported in ILR 1987 KAR page 715.

2. The powers under Section 83 of The Karnataka Land Reforms Act 1961 does not confer powers on Assistant Commissioner to withdraw his earlier order.

3. Under Section 83 of The Karnataka Land Reforms Act 1961 if any illegal transaction comes to the notice of Assistant Commissioner following procedure has to be adopted.
• He has to make summary enquiry
• He has to insist upon land owner to file Form 12 and cross verify the declaration made through concerned Tahsildar.
• Assistant Commissioner has to seek preliminary report from Tahsildar, copy of such report has to be served to land owner to file his objections over the report and then only decision of action under section 83 can be made.
• Under Section 66(2) of The Karnataka Land Reforms Act 1961 Tahsildar is only having powers to issue notice to furnish declaration to any person having excess land beyond ceiling limit.
• Assistant Commissioner can direct concerned Tahsildar to issue notice to concerned person and seek declaration from the person about his land holdings if he becomes aware of illegal transaction.

4. As decided by Karnataka High Court in the case of D.S.Shamala v/s Assistant Commissioner Karnataka reported in 1978(1) Kar.LJ page 472 “The Assistant Commissioner has no jurisdiction to invalidate sale transactions under section 83 before any action is taken by the Tahsildar under section 66-A of the The Karnataka Land Reforms Act 1961”

5. The only legal options left out for an Assistant Commissioner who comes to know about his illegality in orders previously made are:
• He has to file criminal case against persons who filed false affidavits before his court.
• He has to report matter to the Deputy Commissioner, if he has any legally valid defense about his conduct in such proceedings as alleged in news papers reports.
• He should have records before him to send any report or to take any action on the false declarations.
• If the records were seized by the Deputy Commissioner, AC cannot proceed further to pass any orders without perusing records.
• At most he has to summon all records related to concerned cases from lower authorities who changed khatha based on his orders and collect fresh evidence if any to make report to the immediate superior. To do so he has to follow procedure asking Tahsildar to submit his report after issuing notice Under Section 66(2) of The Karnataka Land Reforms Act 1961


6. Under Section 83 of The Karnataka Land Reforms Act 1961 AC can only initiate inquiry regarding illegal transaction. To conclude a transaction to be illegal following records need to be summoned:
• J slip of illegal transactions.
• List of illegal land extent and along with RTC and Mutations.
• Report of Tahsildar
• Declaration of Land Holder under Form-12

7. News paper Report is not having any evidenciary value to take any final action based on it, only thing is to initiate action under Section 66(2) of The Karnataka Land Reforms Act 1961, based on such reports and summoned documents notice has to be given to land holder and furnish report copy and seek his explanation to make decision under Section 83 of The Karnataka Land Reforms Act 1961

Hawkers or Foot path vendors Rights and duties - Supreme court

1. In the case of Bombay Hawkers' Union v. Bombay Municipal Corporation. AIR 1985 SC 1206. the Supreme Court held that "No one has any right to do his or her trade or business so as to cause nuisance, annoyance or inconvenience to the other members of the public. Public Streets, by their very nomenclature and definition, are meant for the use of the general public. They are not laid to facilitate the carrying on of private trade or business. If hawkers were to be conceded the right claimed by them, they could hold the society to ransom by squatting on the centre of busy thoroughfares, thereby paralysing all civic life. Indeed, that is what some of them have done in some parts of the city. They have made it impossible for the pedestrians to walk on footpaths or even on the streets properly so-called".


2. In the case of Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180, the Supreme Court held that a municipality is empowered to cause to be removed encroachments on footpaths or pavements over which the public have a right of passage or access. In this case the Supreme Court also observed that "...............In the first place, footpaths or pavements are public properties which are intended to serve the convenience of the general public. They are not laid for private use and indeed, their use for a private purpose frustrates the very object for which they are carved out from portions of public streets". The Supreme Court was also dismissing misplaced arguments resting on life and liberty by those who were claiming occupation of public streets. In this regard, the Supreme Court observed that ".....There is no substance in the argument advanced on behalf of the petitioners that the claim of the pavement dwellers to put up constructions on pavements and that of the pedestrians to make use of the pavements for passing and repassing, are competing claims and that, the former should be preferred to the latter".


3. Constitutional Bench judgment Sodhan Singh v. New Delhi Municipal Committee (AIR 1989 SC 1988) has laid down that “poverty cannot be the reason to permit encroachments on public lands/roads”. “Street trading-An age old vocation adopted by human beings to earn living--No justification to deny citizens right to earn livelihood using public streets for trade or business--Regulatory measures and reasonable restrictions can be imposed”. “A member of the public is entitled to legitimate user of the road other than actually passing or re-passing through it, provided that he does not create an unreasonable obstruction which may inconvenience other persons having similar right to pass and does not make excessive use of the road to the prejudice of the others. Liberty of an individual comes to an end where the liberty of another commences”. “ What will constitute public nuisance and what can be included in the legitimate user can be ascertained only by taking into account all the relevant circumstances including the size of the road, the amount of traffic and the nature of the additional use one wants to make of the public streets. This has to be judged objectively and here comes the role of public authorities”. “The right to carry on trade or business mentioned in Article 19(1)(g) of the Constitution, on street pavements, if properly regulated, cannot be denied on the ground that the streets are meant exclusively for passing or re-passing and for no other use. Proper regulation is, however, a necessary condition as otherwise the very object of laying out roads--to facilitate traffic--may be defeated. Allowing the right to trade without appropriate control is likely to lead to unhealthy competition and quarrel between traders and travelling public and sometimes amongst the traders themselves resulting in chaos. The right is subject to reasonable restrictions under clause (6) of Article 19”. “The proposition that all public streets and roads in India vest in the State but that the State holds them as trustee on behalf of the public and the members of the public are entitled as beneficiaries to use them as a matter of right, and that this right is limited only by the similar rights possessed by every other citizens to use the pathways and further that the State as trustee is entitled to impose all necessary limitations on the character and extent of the user, should be treated as of universal application. The provisions of the Municipal Acts should be construed in the light of the above proposition and they should receive a beneficent interpretation”. “The petitioners do have the fundamental right to carry on a trade or business of their choice, but not to do so on a particular place, as circumstances are likely to change from time to time. But that does not mean that the licence has to be granted on a daily basis; that arrangement cannot be convenient to anybody, except in special circumstances”. “Some of the hawkers in big cities are selling very costly luxury articles including sophisticated electronic goods, sometimes imported or smuggled. The authorities will be fully justified to deny to such hawkers any facility. They may frame rules in such manner that it may benefit only the poor hawkers incapable of investing a substantial amount for starting the business. Attempt should be made to make the scheme comprehensive, dealing with every relevant aspect, for example, the charges to be levied, the procedure for grant and revocation of the licences, etc”. “Street trading is an age-old vocation adopted by human beings to earn living. It is one of the traditionally recognised business or trade in England. This is so in spite of the fact that there is a complete social security in that country and as such no compulsion on the citizens to be driven to street trading out of poverty or unemployment. On the other hand, abysmal poverty in India warrants outright rejection of the argument that nobody has a right to engage himself in 'street trading”.


4. Those observations of Hon'ble Apex Court in Maharashtra Ekta Hawkers Union v. Municipal Corporation Greater Bombay (Judgement dated 12-02-2007) The restrictions/conditions on which the hawkers shall do the business are :

(1) an area of 1 mtr x 1 mtr on one side of the footpath wherever they exist or on an extreme side of the carriage way, in such a manner that the vehicular and pedestrian traffic is not obstructed and access to shops and residences is not blocked. We further clarify that even where hawking is permitted, it can only be on one side of the footpath or road and under no circumstances on both sides of the footpaths or roads. We however clarify that Aarey/Sarita stalls and sugar cane vendors would require and may be permitted an area of more than 1 Mt. by 1 Mt. but not more than 2 Mt. by 1 Mt;

(2) Hawkers must not put up stalls or place any tables, stand or such other thing or erect any type of structure. They should also not use handcarts. However they may protect their goods from the sun, rain or wind. Obviously this condition would not apply to Aarey/sarita stalls;

(3) There should be no hawking within 100 meters from any place of worship, holy shrine, educational institutions and hospitals or within 150 meters from any municipal or other markets or from any railway station. There should be no hawking on foot-bridges and over-bridges. Further certain areas may be required to be kept free of hawkers for security reasons. However outside places of worship hawkers can be permitted to sell items required by the devotees for offering to the deity or for placing in the place of worship e.g. flowers, sandalwood, candles, agarbattis, coconuts etc.;

(4) The hawkers must not create any noise or play any instrument or music for attracting the public or the customers;

(5) They can only sell cooked foods, cut fruits juices and the like. We are unable to accept submission that cooking should be permitted. We direct that no cooking of any nature whatsoever shall be permitted. Even where cooked food or cut fruits or the like are sold, the food must not be adulterated or unhygienic. All municipal licensing regulations and the provisions of the Prevention of Food Adulteration Act must be complied with;

(6) Hawking must be only between 7.00 am and 10.00 pm;

(7) Hawking will be on the basis of payment of a prescribed fee to be fixed by BMC. However the payment of prescribed fee shall not be deemed to authorize the hawker to do his business beyond prescribed hours and would not confer on the hawker the right to do business at any particular place;

(8) The hawkers must extend full co-operation to the municipal conservancy staff for cleaning the streets and footpaths and also to the other municipal staff for carrying on any municipal work. They must also co-operate with the other Government and public agencies such as Best undertaking, Bombay Telephones, BSES Ltd. etc. if they require to lay any cable or any development work;

(9) No hawking would be permitted on any street which is less than 8 meters in width. Further the hawkers also have to comply with Development Control Rules thus there can be no hawking in a areas which are exclusively residential and where trading and commercial activity is prohibited. Thus hawking cannot be permitted on roads and pavements which do not have a shopping line;

(10) BMC shall grant licences which will have photos of the hawkers on them. The licence must be displayed, at all times, by the hawkers on their person by clipping it on to their shirt or coat;


(11) Not more than one member of a family must be given a licence to hawk. For this purpose BMC will have to computerize its records;

(12) Vending of costly items e.g. electrical appliances, video and audio tapes and cassettes, cameras, phones etc. are to be prohibited. In the event of any hawker found to be selling such items his licence must be cancelled forthwith.


(13) In areas other than the Non-Hawking Zones, licences must be granted to the hawkers to do their business on payment of the prescribed fee. The licences must be for a period of 1 year. That will be without prejudice to the right of the Committee to extend the limits of the Non-Hawking Zones in the interests of public health, sanitation, safety, public convenience and the like. Hawking licences should not be refused in the Hawking Zones except for good reasons. The discretion not to grant a hawking licence in the Hawking Zone should be exercised reasonably and in public interest.

(14) In future, before making any alteration in the scheme, the Commissioner should place the matter before the Committee who shall take a decision after considering views of all concerned including the hawkers, the Commissioner of Police and members of the public or an association representing the public.



(15) It is expected that citizens and shopkeepers shall participate in keeping non-hawking zones/areas free from hawkers. They shall do so by bringing to the notice of the concerned ward officer the presence of a hawker in a non hawking zone/area. The concerned ward officer shall take immediate steps to remove such a hawker. In case the ward officer takes no action a written complaint may be filed by the citizen/shopkeeper to the Committee. The Committee shall look into the complaint and if found correct the Committee will with the help of police remove the hawker. The officer in charge of the concerned police station is directed to give prompt and immediate assistance to the Committee. In the event of the Committee finding the complaint to be correct it shall so record. On the Committee so recording an adverse remark re failure to perform his duty will be entered in the confidential record of the concerned ward officer. If more than three such entries are found in the record of an officer it would be a ground for withholding promotion. If more than 6 such entries are found in the records of an officer it shall be a ground for termination of service. For the work of attending to such complaints BMC shall pay to the Chairman a fixed honorarium of Rupees 10,000/- p.m.


(16) The scheme framed by us will have a binding effect on all concerned. Thus apart from those to whom licenses will now be issued, no other person/body will have any right to squat or carry on any hawking or other business on the roads/streets. We direct the BMC shall bring this judgment to the notice of all Courts in which matters are now pending. We are quite sure that the concerned Court/s shall then suitably vacate/modify its injunction/stay order."

Municipal property, Roads and its encroachments and public rights- Supreme court

1. More than a century ago in Attorney General v. Corporation of Sunder Land, 1875-76(2) Ch.D 634, the position of the municipal authorities with regard to public parks, gardens, squares and streets was put at par with a trustee, and it was held that the municipal authorities would be guilty of breach of trust in employing any part thereof for purposes other than those contemplated by the relevant statute


2. Supreme Court of India in K.R. Shenoy v Udipi Municipality, AIR 1974 SC 2177. In the above case, the Municipality of Udipi had granted permission for construction of Cinema Hall in a place which was reserved for residential purposes. This action of the Municipality was struck down by observing that the Municipal authorities are supposed to enforce a scheme and not to act in breach thereof. It would be apt to quote what was said by the Supreme Court :- "Where the Municipality acts in excess of the powers conferred by the Act or abuses those powers then in those cases it is not exercising its jurisdiction irregularly or wrongly but it is usurping powers which it does not possess. The right to build on his own land is a right incidental to the ownership of that land. Within the Municipality the exercise of that right has been regulated in the interest of the community residing within its limits of the Municipal Committee. If under pretence of any authority which the law does give to the Municipality it goes beyond the like of its authority and infringes or violates the rights of others, it becomes like all other of the Courts. If sanction is given to build by contravening a bye-law the jurisdiction of the Courts will be invoked on the ground that the approval by an authority of building plans which contravene the bye-laws made by that authority is illegal and inoperative."


3. The same concern was shown by the Supreme Court of India in Bangalore Medical Trust v. B.S. Muddappa, AIR 1991 SC 1902. In this case action of the local authority which was destructive of environment was set at naught.


4. The decisions given by the Supreme Court of India be also noticed. In Municipality v. Mahadeoji, AIR 1965 SC 1147 it observed that inference of dedication of a highway to the public may be drawn from a long user of the highway by the public. It was observed : "The width of the highway so dedicated depends upon the extent of the user. The side land are ordinarily included in the road for they are necessary for the proper maintenance of the road. In the case of a pathway used for a long time by the public, its topographical and permanent landmark and the manner and mode of its maintenance usually indicate the extent of the user." In Manglore Municipality v. Mahadeoji, AIR 1965 SC 1147, it was observed that :- "Inference of dedication of a highway to the public may be drawn from a long user of the highway by the public. The width of the highway so dedicated depends upon the extent of the user. The side lands are ordinarily included in the road for they are necessary for the proper maintenance of the road. In the case of a pathway used for a long time by the public, its topographical and permanent landmark and the manner and mode of its maintenance usually indicate the extent of the user."




5. State of U. P. v. Ata Mohd., AIR 1980 SC 1785, it was held that street would vest in the Corporation only qua the street and not as absolute property. What is vested in the Municipality is not general property or a species of property known to the common law but a special property created by a statute and vested in a corporate body for public purposes. Such vesting enables the Corporation to use the Street as a street and not for any other purpose. Not only pavements but verandahs in front of the shops are part of streets and public streets. State of U. P. v. Ata Mohd.. AIR 1980 SC 1785. The Supreme Court held if the municipality put the street to any other user than that for which, it was intended, the State as its owner, was entitled to intervene and maintain an action to get any person in illegal occupation evicted.






6. Supreme Court in the case of M/s Gobind Pershad v. New Delhi Municipal Committee, AIR 1993 SC 2313. In this case verandahs in Connaught Circus in New Delhi were held to be part of public streets. In para 12 of the judgment it was observed as under : "We see no ground to differ with the concurrent findings of the Court below and hold that the appellant has dedicated the Verandah in dispute to the public-use. It is being used for passing and repassing by the public at large and as such is a "street" in terms of section 3(13)(a) of the Act. The appellant has thus surrendered his rights in the property for the benefit of the public. The user of the property is and always shall be with the public. Any space, passage, verandah, alley, road or footway dedicated to public by the owner for passing and repassing, partakes the character of a "street" and no longer remains under the control of the owner has no right at all times to prevent the public from using the same. When the owner of the . property has, by his own violation permitted his property to be converted into a "street", then he has no right to claim any compensation when the same property is made "public street" under section 17(4) of the Act. The "streets" are meant for public use. It is necessary that the "streets" which are being used by the public are frequently repaired and are also saved from public abuse. It is common knowledge that in the absence of any regulatory control the hawkers and squatters are likely to occupy the "streets" thereby creating nuisance for the public. In a situation like this it is necessary for the committee to step in and exercise its powers under section 17(4) of the Act. The Committee exercises regulatory control and is responsible for the repair and upkeep of the "public streets". The verandah in dispute is a "street". It has been declared as a "public street" for the better enjoyment of the public right in the said street. We hold that when a "street" is declared as "public street" the owner of the property comprising the said "street", has no right to claim compensation."



7. In another case, the Zoning Authority had prevented the spread of a commercial venture as a hotel in and around a lake in the State of Tamilnadu. The local administration did not permit it. The Chief Minister interfered with the local self-government in the district. The Supreme Court was not appreciative of the fact that in such matters of discipline in urban construction and environment protection instructions should be given from the top which result in for violation of planned urban habitats. Pleasant Stay Hotel v. Pilani Conservation Council. 1995 (6) SCC 127.



8. In the case of Delhi Municipal Corporation v. Gumam Kaur, AIR 1989 SC 38, the Supreme Court reiterated the law that to remove an encroachment of a public road is the obligation of a municipality and that an injunction could not be granted to suffer an encroachment of a public place like a street which is meant for the use of the pedestrians.




9. In the case of Ahmedabad Municipal Corporation v. D. Balwantsingh. JT 1992 (2) SC 363, the Supreme Court negatived the plea of an occupier of a public street when he obtained an injunction in a suit to prevent the removal of an encroachment. The Supreme Court reiterated its earlier decisions. Removal of encroachment was upheld ; so was the action of the municipal corporation to shift the hawkers to an alternate site.



10. In the case of Gobind Pershad Jagdish Pershad v. New Delhi Municipal Committee, AIR 1993 SC 2313, the Supreme, Court extended the public street into the verandhas in front of a shop which by long user had been used by the public as a passage. Thus, shopping arcades or verandhas adjoining public streets were given the declaration of a public street. Encroachment of such verandhas in front of public streets was held as illegal.



11. Case of Dr. G.N. Khajuria and Ors. Appellants v. Delhi Development Authority and Ors. AIR 1996 SC 253 In paragraph 10, Hon'ble Apex Court observes: --Before parting, we have an observation to make. The same is that a feeling is gathering ground that where unauthorised constructions are demolished on the force of the order of Courts, the illegality is not taken care of fully inasmuch as the Officers of the statutory body who had allowed the unauthorised construction to be made or make illegal allotments go scot free. This should not, however, have happened for two reasons. First, it is the illegal action/order of the Officer which lies at the root of the unlawful act of the concerned citizen, because of which the Officer is more to be blamed than the recipient of the illegal benefit. It is thus imperative, according to us, that while undoing the mischief which would require the demolition of the unauthorised construction, the delinquent Officer has also to be punished in accordance with law. This, however, seldom happens. Secondly, to take care of the injustice completely, the Officer who had misused his power has also to be properly punished. Otherwise, what happens is that the officer, who made the hay when the sun shined, retains the hay, which tempts other to do the same. This really gives fillip to the commission of tainted acts, whereas the aim should be opposite.

12. In Municipal Committee, Karnal, Appellant v. Nirmala Devi , Hon'ble Apex Court has considered encroachment on public street and has held that Municipal Committee had power to have said unauthorised encroachment and construction removed and to recover the costs thereof from such encroacher. Thereby, the Municipal Committee has necessary power to have the unauthorised construction removed and encroacher ejected. If the encroacher does not voluntarily remove the unauthorised construction, the Municipal Committee has power to have it removed by exercise of the power vested under Section 181(2) of the Act. Since the Committee has exercised the statutory power, the award of damages is clearly illegal, unwarranted and unsustainable.

13. In case of Cantorment Board, Jabalpur v. S.N. Awasthi reported at 1995 Supp (4) SCC 595, Hon'ble Apex Court has in paragraph 5 held that construction made in contravention of law cannot be a premium to extend equity so as to facilitate violation of mandatory requirements of law and High Court was not justified in extending equity on this ground.



14. In Debashis Roy v. Calcutta Municipal Corporation reported at 2005 (12) SCC 317, Hon'ble Apex Court has held that the issue about legality or otherwise of conversion of user of parking space in residential area for commercial purposes permitted by Municipal Corporation was not a dispute between private parties and essentially involved an element of public interest.


15. In M.I. Builders v. Radhey Shyam Sahu Hon'ble Apex Court 1996(6) SCC 464 has observed that any commercial activity in unauthorised constructions puts additional burden on locality and it is the primary concern of Court to eliminate the negative impact which it will have on environmental conditions in the area and the congestion that will aggravate on account of increased traffic and people visiting such complex. It is also observed that while directing demolition of unauthorised construction, the Court should also direct an inquiry as to how the unauthorised construction came about and to bring the offenders to book and it is not enough to order demolition only.


16. Observations of Hon'ble Apex Court in M.C. Mehtav. U.O.I. 2006(2) SCALE 364 Judgement dated 16-02-2006, reveal that user, commercial residential is very relevant and occupation load has large impact on various facilities including water, sanitation and drainage. Master plans are prepared to take care of future needs by experts after looking into various aspects like healthy living, environment, Lung space need, land use intensity, areas where residential houses are to be built and were commercial buildings are to be located, need of household industries etc.. Hon'ble Apex Court has also observed that though task of implementation may be difficult, the Court cannot remain the mute spectator when the violations also affect the environment and healthy living of law abiders. The enormity of the problem cannot be a deterrent factor in this respect. It is observed that various laws are enacted, master plans are prepare by expert planners, provision is made in the plans also to tackle the problem of existing unauthorised constructions and misusers and, still such illegal activities go on unabated openly under the gaze of everyone without having any respect and regard for law and other citizens. Hon'ble Court has also observed that laws are not enforced and the orders of the Court are not properly implemented resulting into total lawlessness. It has observed that therefore it is necessary to identify and take appropriate action against officers responsible for this state of affairs because such blatant misuse of properties at large-scale do not take place without connivance of concerned officers. Hon'ble Court therefore found it proper to constitute a Monitoring Committee and the issue of accountability of officers and also the exact manner of applicability of "Polluters Pay Principle" to owners and officers could be taken up after misuser is stopped at least on main roads in New Delhi. The Hon'ble Apex Court has thereafter in last paragraph issue directions about giving of individual notices for stopping of misuser, filing of affidavit to that effect by owners and sealing of premises in default.



17. Hon'ble Apex Court in case of Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan Judgement dated 11-10-1996.It is observed as follows:
“It is apparent that plaintiff or applicant who wants his encroachments on Public Road to be protected by any interim order has to satisfy the court about existence of any legal right in his favour to maintain such encroachment during pendency of suit and for that purpose, he has to point out some title in him authorising him to occupy the portion of public Road or footpath etc.. In the absence of any such legal right, the encroacher cannot be permitted to obstruct the free flow of traffic or cause inconvenience to public at large. Mere long possession or user cannot be an answer to tilt the balance in his favour when in other pan of balance, the Court has to weigh interest of public at large. Even the threat of loosing source of livelihood cannot be, by itself a circumstance in favour of such applicant. He encroached upon public road or footpath knowing fully well that nobody can clothe him with authority to occupy and use it for his private gain. He cannot feign ignorance of provisions of Law and try to raise equity in his favour. Court of Law cannot permit such wrongdoer to continue to injure public at large during pendency of suit. Hence, his plaint itself must contain sufficient material and facts to satisfy the court that the convenience & interest of public at large must suffer because of legal right in his favour, which will be a very rare case”.

”Encroachment of public property undoubtedly obstructs and upsets planned development, echology and sanitation. Public property needs to be preserved and protected. It is but the duty of the State and local bodies to ensure the same. This would answer the second question. As regards the fourth question, it is to reiterate that judicial review is the basic structure of the Constitution. Every citizen has a fundamental right to redress the perceived legal injury through judicial process. The encroachers are no exceptions to that Constitutional right to judicial redressal. The Constitutional Court, therefore, has a Constitutional duty as sentinel qui vive to enforce the right of a citizen when the he approaches the Court for perceived legal injury, provided he establishes that he has a right to remedy. When an encroacher approaches the Court, the Court is required to examine whether the encroacher had any right and to what extent he would be given protection and relief. In that behalf, it is the salutary duty of the State or the local bodies or any instrumentality to assist the Court by placing necessary factual position and legal setting for adjudication and for granting/refusing relief appropriate to the situation. Therefore, the mere fact that the encroachers have approached the Court would be no ground to dismiss their cases. The contention of the appellant-Corporation that the intervention of the Court would aid impetus to the encroachers to abuse the judicial process is untenable. As held earlier, if the appellant-Corporation or any local body or the State acts with vigilance and prevents encroachment immediately, the need to follow the procedure enshrined as a inbuilt fair procedure would be obviated. But if they allow the encroachers to remain in settled possession sufficiently for long time, which would be a fact to be established in an appropriate case, necessarily suitable procedure would be required to be adopted to meet the fact situation and that, therefore, it would be for the respondent concerned and also for the petitioner to establish the respective claims and it is for the Court to consider as to what would be the appropriate procedure required to be adopted in the given facts and circumstances”.

“It is true that in all cases it may not be necessary, as a condition for ejectment of the encroacher, that he should be provided with an alternative accommodation at the expense of the State which if given due credence, is likely to result in abuse of the judicial process. But no absolute principle of universal application would be laid in this behalf. Each case is required to be examined on the given set of facts and appropriate to the facts of the case. Normally, the Court suitable to the facts of the case. Normally, the Court may not, as a rule, directs that the encroacher should be provided with an alternative accommodation before ejectment when they encroached public properties, but, as stated earlier, each case required examination and suitable direction appropriate to the facts requires modulation”.

18. Syed Muzaffar Ali v. Municipal Corporation of Delhi reported at 1995 Supp (4) SCC 426 shows that Hon Apex Court has observed that mere departure from the authorised plan or putting up the construction without sanction does not ipso facto and without more necessarily and inevitably justify demolition of structure. Some cases may be amenable to compounding while the other cases of grave & serious breaches of licensing provisions or building regulations may warrant demolition. Therefore the burden is entirely upon plaintiff or applicant to satisfy the court with material as mentioned above or other relevant material to show that his structure does not violate zoning regulations or development control rules or building bylaws. If after considering such material and after considering the provisions of relevant Law, the Court is satisfied that the unauthorised structure forming subject matter of suit before it can be compounded legally, it can proceed to grant temporary injunction.



19. Bombay High Court in case of Vinayak S Bhapat Vs SP Chandrapur (AIR 2005 Bom R 328) has quoted the Judgement of Shiv Kumar Chadha v. Municipal Corporation of Delhi reported at 1993(3) SCC 161 the Hon'ble Apex Court has considered the issue of grant of temporary injunction in detail from paragraph 30 onwards. The observations made also show that such plaintiff is interested only in getting an order of interim injunction and Hon'ble Apex Court has pointed out that normally such relief is not to be granted without issuing notice to the other side. Hon'ble Apex Court has observed that on many occasions even public interest suffers because of such interim orders. In view of these detail observations of Hon'ble Apex Court, it is not necessary for us to repeat the same again here. However, we have pointed out some of the circumstances which may be relevant for trial court to find out whether applicant has approached it with clean hands and whether there exists any prima facie case in his favour. The encroacher or person who has raised unauthorised structure wants to perpetuate his illegality or irregularity as long as possible and for that purpose wants to engage himself in long drawn legal battle. If in such situation any officer of sanctioning authority who has to defend the action of local body before Court is acting in collusion with such applicant, the local body may avoid to file reply or avoid to defend itself effectively and take adjournments. In that event, the proceedings in court can easily be delayed by applicant and he can continue to enjoy the shelter of interim order. The local body or executive can thereafter defend its inaction by pointing out such pendency in Court as is being done before us. The Court granting such temporary injunction therefore cannot forget its role as custodian and guardian of public interest and it has to safeguard such larger interest independently. Hence, if such temporary injunctions are granted, Court granting it must fix an outer limit beyond which it will not operate. Not only this, if it finds that local body/authority is not co-operating in the matter, it can record an order to that effect and impose heavy costs upon such local authority or officer prima facie found guilty in the matter. In appropriate cases, it can also direct that such costs should be recovered from the officer concerned personally and it can also proceed in contempt against such body or officer. Simultaneously it can also forward copy of its order to concerned Collector or R.D.M.A.for initiation of disciplinary proceedings against such person. If such order is received by Collector or R.D.M.A., the latter shall be under obligation to immediately proceed departmentally against the officer named in the order. The steps about asking the applicant/plaintiff to submit his actual plan for consideration of sanctioning authority as suggested above, in the meanwhile, will also subserve the ends of justice. The advocates appearing for contesting parties before such Court must also ensure that no blame for long pendency can be put upon Court and no adjournment should be asked on the ground of nonavailability of advocate by party in whose favour interim order is operating. No doubt, the subordinate Court has got discretion in the matter of grant of adjournment, however, it has to be conscious of abuse of its process by colluding parties or by influential party and take all precautions to curb or avoid it. The guiding factors mentioned above, if followed, will definitely help the subordinate Court in achieving this goal.

Social concept of 'Law' is well explained by Supreme Court

In case of M/S MOTILAL PADAMPAT SUGAR MILLS CO. (P.) LTD. Vs.STATE OF UTTAR PRADESH AND ORS. ”Law is not a mausoleum. It is not an antique to be taken down, dusted admired and put back on the shelf. It is rather like an old but vigorous tree having its roots in history, yet continuously taking new grafts and putting out new sprouts and occasionally dropping dead wood. It is essentially a social process, the end product of which is justice and hence it must keep on growing and developing with changing social concepts and values. Otherwise, there will be estrangement between law and justice and law will cease to have legitimacy Though continuity with the past is a historical necessity, conformity is not to be turned into a fetish”.


In case of AIR INDIA STATUTORY CORPORATION. Vs.UNITED LABOUR UNION & ORS. Decided on : 06/11/1996, It is observed that "We, the people", a charter to establish an egalitarian social order in which social and economic justice with dignity of person and equality of status and opportunity, are assured to every citizen in a socialist democratic Bharat Republic. The Constitution, the Supreme law heralds to achieve the above goals under the rule of law. Life of law is not logic but is one of experience, Constitution provides an enduring instrument, designed to meet the changing needs of each succeeding generation altering and adjusting the unequal conditions to pave way for social and economic democracy within the spirit drawn from the Constitution. So too, the legal redressal within the said parameters. The words in the Constitution or
in an Act are but a framework of the concept which may change more than words themselves consistent with the march of law. Constitutional issues require interpretation broadly not by play of words or without the acceptance of the line
of their growth, Preamble of the Constitution, as its integral part, is people including workmen, harmoniously blending the details enumerated in the Fundamental Rights and the Directive Principles. The Act is a social welfare
measure to further the general interest of the community of workmen as opposed to the particular interest of the individual enterpreneur. It seeks to achieve a public purpose, i.e., regulated conditions of contract labour and to abolish it when it is found to be of perennial nature etc. The individual interest can, therefore, no longer stem the forward flowing tide and must, of necessity, give way to the broader public purpose of establishing social and economic democracy in which every workmen realises socio- economic justice assured in the preamble, Articles 14,15 and 21 and the Directive Principles of the Constitution."

In Rudul Sah vs. State of Bihar, 1983(3) SCR 508, it was held that Supreme Court under Article 32 can grant compensation for the deprivation of personal liberty, though ordinary process of court, may be available to enforce the right and money claim could be granted by this Court. Accordingly compensation was
awarded.

In National Textile Workers' Union vs.P.R. Ramakrishnan, 1983(1) SCR 922, the Constitution Bench, per majority, held that the role of a company in modern economy and their increasing impact of individuals and groups through the ramifications of their activities, began to be increasingly
recognised. The socio-economic objectives set out in Part IV of the constitution guide and shape the new corporate philosophy. "Today social scientists and thinkers regard a company as a living vital and dynamic social organism with firm and deep rooted affiliations with the rest of the community in which it functions. It would be wrong to look upon it as something belonging to the shareholders." It was further held that "it is not only the shareholders who have supplied capital who are interested in the enterprise which is being run by a company but the workers who supply labour are also equally, if not, more interested because what is produced by the enterprise is the result of labour as well as capital. In fact, the owners of capital bear only limited financial risk and otherwise contribute nothing to production while labour contributes a major share of the product. While the former invest only a part of their moneys, the latter invest their sweat and toil, in fact their life itself. The workers, therefore, have a special place in a socialist pattern of society. They are not mere vendors of toil, they are not a marketable commodity to be purchased by the owners of capital. They are producers of wealth as much as capital nay very much more. They supply labour without which capital would be impotent and they, at the least, equal partners with capital in the enterprise. Our constitution has shown profound concern for the workers and given them a pride of place in the new socioeconomic order envisaged in the Preamble and the Directive Principles of State Policy. The Preamble contains the profound declaration pregnant with meaning and hope for millions of peasants and workers that India shall be a socialist demo- cratic republic where social and economic justice will inform all the institutions of national life and there will be equality of status and opportunity for all and every endeavour shall be made to promote fraternity ensuring the dignity of the individual. "

In Pt Parmanand Katara vs. Union of India, (1989)4 SCC 286, Supreme court
directed even private doctors or hospitals to extend services to protect the life of the patient, be an innocent or a criminal liable for punishment in accordance with law.

In Olga Tellis v. Bombay Municipal Corporation, 1985(3) SCC 545, Supreme Court held that no person can live without the means of living i.e. means of livelihood. If the right to livelihood is not treated as a part of the constitutional right to life, the easiest way of depriving a person of his right to life would be to deprive
him of his means of livelihood to the point of abrogation. Such deprivation would not only denude the life of its effective content of meaningfulness but it would make life impossible to live, leave aside what makes life liveable. The right to life with human dignity encompasses within its fold, some of the finer facets of human civilisation which makes life worth living. The expanded connotation of life would mean the tradition and cultural heritage of the persons concerned.

In State of H.P. vs. Umed Ram Sharma, (1986)2 SCC 68, Supreme Court held that the right to life includes the quality of life as understood in its richness and fullness by the ambit of the constitution. Access to road was held to be an access to life itself in that state.

In Charles Sobraj vs. Supdt. Central Jail, Tihar, AIR 1978 SC 1514, Supreme Court held that the right to life includes right to human dignity.The right against torture, cruel or unusual punishment or degraded treatment was held to violate
the right to life.

In C.E.S.C. Ltd.& Ors.vs. Subhash Chandra Bose, 1992(1) SCC 441, considered the gamut of operational efficacy of Human Rights and the constitutional rights, the right to medical aid and health and held that the right to social justice are fundamental rights.

Right to free legal aid to the poor and indigent worker was held to be a fundamental right in Khatri vs. State of Bihar, (1981)1 SCC 627.

Right to education was held to be a fundmental right vide Maharashtra State B.O.S.
& H.S. Education v. K.S. Gandhi, 1991(2) SCC 716. and Unni Krishnan v. State of A.P., (1993)1 SCC 645.

In case of CONSUMER EDUCATION & RESEARCH CENTRE AND OTHERS Vs.UNION OF INDIA & OTHERS
Decided by SC on 27/01/1995 It is held that " The right to health to a worker is an integral facet of meaningful right to life to have not only a meaningful existence but also robust health and vigour without which worker would lead life of misery. Lack of health denudes his livelihood. Compelling economic necessity to work in an industry exposed to health hazards due to indigence to bread-winning to himself and his dependents, should not be at the cost of the health and vigour of the workman. Facilities and opportunities, as enjoined in Article 38, should be provided to protect the health of the workman.
Provision for medical test and treatment invigorates the health of the worker for
higher production or efficient service. Continued treatment, while in service or after retirement is a moral, legal and constitutional concomitant duty of the employer and the State. Therefore, it must be held that the right to health and medical care is a fundamental right under Article 21 read with Articles 39(c), 41 and 43 of the Constitution and make the life of the workman meaningful and purposeful with dignity of person."


In case of CONSUMER EDUCATION & RESEARCH CENTRE AND OTHERS Vs.UNION OF INDIA & OTHERS
Decided by SC on 27/01/1995 It is held that "Social justice is a dynamic device to mitigate the sufferings of the poor, weak, Dalits, Tribals and deprived sections of the society and to elevate them to the level of equality to live a life with dignity of person. Social justice is not a simple or single idea of a society but is an essential part of complex of social change to relieve the poor etc. from handicaps, penury to ward off distress, and to make their life liveable, for greater good of the society at large."

Justice K. Subba Rao, the former Chief Justice of Supreme Court, in his Book "Social
Justice and Law' at page 2, had stated that "Social Justice is one of the disciplines of justice and the discipline of justice relates to the society." What is due cannot be ascertained by absolute standard which keeps changing depending upon the time, place and circumstance. The constitutional concern of social justice as an elastic continuous process is to accord justice to all sections of the society by providing facilities and opportunities to remove handicaps and disabilities with which the poor etc. are languishing to secure dignity of their person. The Constitution, therefore, Mandates the State to accord justice to all members of the society in all facets of human activity. The concept of social justice embeds equality to flavour and enliven practical content of 'life'. Social justice and equality are complementary to each other so that both should maintain their vitality. Rule of law, therefore, is a potent instrument of social justice to bring about equality in results.

In Delhi Transport Corporation vs. D.T.C. Mazdoor Congress and Ors. Reported in (1991) supp. 1 SCC 600 at 737 para 271 it was held that "law is social engineering to remove the existing imbalance and to further the progress, serving the needs of the Socialist Democratic Bharat Under the rule of
law. The prevailing social conditions and actualities of life are to be taken into account in adjudging whether or not the impugned legislation would observe the purpose of the society."

In Ahmedabad St. Xaviers College Society & Anr. vs. State of Gujarat & Anr. Reported in (1975) 1 SCR 173 at 252] Held through a Bench of nine Judges, That "to establish equality, it would require absolute identical treatment of both the minority and majority. That would result only in equality in law but inequality in fact. The distinction need not be elaborated. It is obvious that equality in law precludes discrimination of any kind whereas equality in fact may involve the necessity of differential treatment in order to attain a result which establishes and equilibrium between different situations".

Status of Karta regarding minors rights and his right to sale ancestral properties under Hindu law

KARNATAKA High Court in a case of Gangoji Rao And Anr. vs H.K. Channappa And Ors. Decided on 9/12/1982. Reported in 1983 (1) Kar. L.J. 177; observes as follows

The view that I have taken finds support in the ruling rendered by the High Court of Rajasthan in the case, Girdhar Singh v. Anand Singh. In a similar case, the High Court of Rajasthan, in para 12 of the judgment, has held thus : "As regards the question of taking permission from a competant Court of law in this case, I am in agreement with the view taken in Sunnamani Dei v. Babaji Das that when the minor and his mother constitute a Hindu Joint Family, each with a moiety of undivided interest in any movable property be longing to the family, in the absence of the father, the mother as natural guardian, can alienate even the minor's half share in the immovable property under the personal law. Section 8 of the Hindu Minority and Guardianship Act will not apply to such alienation. This view finds support from Smt. Suggabai v. Hira Lal ."



In Re. Krishnakant Maganlal, , Bhagwati J., delivering the judgment has observed. (at p. 73) "The restrictions contained in Section 8 do not apply in respect of the undivided interest of a minor in joint family property and Section 8 does not debar a Manager and Karta of a joint family from alienating joint family property without obtaining the previous permission of the Court even if the Manager and Karta happens to be the natural guardian in respect of the separate property of any one or more of the minor coparceners. Of course the alienation would have to be justified under Hindu Law, but Section 8 does not require that any previous permission of the Court should be obtained before effecting such alienation........"


The decisions discussed above would clearly establish that the term 'joint family property' is used in a wider sense in the relevant sections in the Act than in the restricting term 'Coparcenary' used in the Common (Hindu) Law. It further becomes established that in a family, consisting of the mother and her minor children, the mother can act as Manager of the joint family properties though she could not do so under the Common (Hindu) Law with regard to coparcenary properties. It is further established that the mother, as manager of the joint family properties, has the same rights as the 'karta' under the Common (Hindu) Law to bring about alienation of the joint family properties, including the share of the minors for legal necessity or for the benefit of the estate.


KARNATAKA High Court in a case of A. Chidananda (Deceased) By L.Rs. And Anr. vs Smt. Lalitha V. Naik And Ors. Decided on 19/1/2006 observed as follows


In the instant case, as a matter of fact, the property in question was sold in favour of 3rd defendant either for discharge of antecedent debts or for other necessities and it appears, two properties are said to have been acquired for the benefit of the family by the 1st defendant acting in the capacity of a Manager or guardian of the family. In fact, it is also the case of 3rd defendant that the suit filed by the plaintiff is for declaration to declare that the suit property sold in favour of 3rd defendant by defendants 1 and 2 is null and void and also for partition of the suit property and the suit ought to have been dismissed in limine since all the properties are not brought into the common hotchpot for the purpose of partition. At this stage, it is the argument of the appellants' Counsel that they have questioned only the sale of the property by other defendants in favour of 3rd defendant and as such, the suit is maintainable. It has to be noted that the suit filed is not for a mere declaration, it is also a suit for partition and in the circumstances, the plaintiffs should have brought all the properties into the common hotchpot. This aspect has been referred only incidentally although it does not require any comments by me.



Further, in the decision in Kishore's case, referring to the recitals in the deed, this Court has relied upon the decision of the Supreme Court in Smt. Rani and Anr. v. Smt. Santa Bala Debnath and Ors. and Radhakrishnadas and Anr. v. Kaluram (dead) by L.Rs and Ors. , regarding burden of proof on the part, of the alienee is concerned, wherein in Rani's case, it is observed that the recitals in a deed of legal necessity do not by themselves prove legal necessity. The recitals are, however, admissible in evidence, their value varying according to the circumstances in which the transaction was entered into. The recitals may he used to corroborate other evidence of the existence of legal necessity. The weight to be attached to the recitals varies according to the circumstance. In Radhakrishnadas case, it is observed that it is now well-established that what the alienee is required to establish is legal necessity for the transaction and it is not necessary for him to show that every bit of the consideration which he advanced was actually applied for meeting family necessity. The reason is that the alienee can rarely have the means of controlling and directing the actual application of the money paid or advanced by him unless he enters into the management himself.




Moreover, as is held by the Division Bench, the natural guardian of a minor has the necessary competence to deal with even the separate property of the minors. Nonetheless the natural guardian remains a guardian of the minors in other senses also. It is also emphasised that natural guardian who has a share in the property along with the minors' undivided interest in the property is legally competent to alienate the property as a whole.



Karnataka High Court in a case of Rajasekhar vs Siddalingappa Reported in I.L.R (1986) 2 Kant 2765 Decided on 29/7/1986 by Justice Nesargi, J. observed as follows:-

In Sunamani Dei -v.- Babaji Das, , R. N. Mishra, J. (as he then was) has held that when the minor and his mother constitute a Hindu joint family each having a undivided interest in the house belonging to the family, in the absence of the father, the mother, as natural guardian, can alienate even the minor's half share in the house under the personal law. Dealing with the question that a female member cannot act as the karta of a joint family, his Lordship has held as follows : "The sharp division in judicial opinion as to whether a female member can act as the karta has been set at rest by the Supreme Court in (Commissioner of Income-tax v. Seth Govindram Sugar Mills). Law has also been settled that a Hindu joint family can exist with one male member and his mother (See , G. Buddanna v. Commissioner of Income Tax, Mysore). At the time of the impugned alienation (Ex. A), the minor and his mother were members of such a Hindu joint family each of them having a moiety undivided interest in the property (as conceded in paragraph 1 of the plaint). The plaintiff asked for a declaration that Ex. A was not valid alienation. So far as the mothers (defendant-No. 3's) share is concerned, on the finding of the lower Appellate Court the same has got to be upheld. So far as the minor's half share is concerned, as natural guardian the mother could alienate the same under the personal law."



Karnataka High Court in a case of Smt. Mangala vs Smt. Jayabai And Others Decided on 15/4/1994 By Justice Vasanthakumr, J. Reliance is placed on the decisions held in C.I.T. v. G.S. Mills; , Gangojirao v. Chennappa; , Surjit Lal v. I.T. Commr. Bombay, Rajasekar v. Siddalingapa; , T.Gounder Parvathimmal. and framed following points of Hindu Law

1. Co-parcenership is a necessary qualification for the managership of a Joint Hindu Family and as a widow is not admittedly a coparcenor, she has no legal qualification to become the manager of a Joint Hindu Family.

2. In the absence of father, the mother could manage the Joint family property including the interest of male and female minors, in such property. Section 12 of M and G Act does not empower appointment of Court guardian. Mother managing family property being natural guardian. Section 11 of M. & G. Act is not attracted, and can validly alienate the property including minors in it for family necessity without obtaining permission of the Court. Legislature has in its wisdom used term 'Joint Family' in Section 6 and 16 thus contradistinguishing it from co-parcenary. The mother can also manage the family property is evident from Section 12 referring to family property being in the management of 'an adult member' of the family. The Joint family includes in it the mother, son and umarried daughters and the expression joint family property is used in its wider sense including the shares of these female members.

3. Hindu co-parcenary is a much narrower body than the Joint family. It includes only those persons who acquire by birth an interest in the joint or co-parcenary property and there are sons, grandsons and great-grandsons of the holders of the Joint properly for the time being. Since under the Mithakshara Law the right to joint family property by birth is vested in the male issue only females who come in only as heirs to obsstructed heritage cannot be co-parcerners. Outside the limits of co-parcenary there is a fringe of persons males and females who constitute an undivided or joint family. There is no limit to the number of persons who can compose it nor to their remoteness from the common ancestor and to their relationship with one another. The joint Hindu Family is thus a larger body consisting of group of persons who are united by the tie of sapindaship arising by birth, marriage or adoption. The fundamental principle of the Hindu Joint Family is the Sapindaship. The absence of an antecedent history of Jointness between the assessee and his ancestors is no impediment to the assessee his wife and unmarried daughter forming a joint Hindu Family. That it does not take more than one male to form a joint Hindu Family, with female is well established.

4. Thus a man who separates from his father or brothers may nevertheless continue to be joint with member of his own branch. He becomes the head of a new Joint Family if he has family and if he obtains property on Partition with his father and brothers that property becomes ancestral property or hsi branch Qua him and his male issue. It is true that one cannot constitute co-parcenary with his wife and unmarried daughter.

5. Joint Hindu family with all its incidents is thus a creature of law and cannot be created by act of parties except to the extent of which a stranger may be affiliated to the family by adoption. But the absence of antecedent history of jointness, between the male member and his ancestors is no impediment to the male member, his wife and unmarried daughter forming a joint Hindu family. The male member's wife becomes his sapinda on her marriage with him. The daughter too on her birth became sapinda and until she leaves the family by marriage the tie of sapindaship will bind her to the family of her birth.

6. Minors undivided interest in joint family property does not fall within the ambit of Section 6 of Mand G Act. When Section 8 does not take within its ambit minors undivided interest in the Joint Family property. Section 8(3) would not be applicable. It is settled law that natural guardian of minor has the necessary competence to deal with even the separate property of the minors for necessity.

7. Where all members who could succeed to the properties of the deceased are female members the position is clear that such female members who succeed to the ancestor take no doubt definite shares in the estate under the Hindu Succession Act but the interest of each in it is a tenant in common. Though it entitles a sharer to claim an independent share in the Joint Hindu Family yet she cannot act for other members of the family and assume the garb of Joint Family Manager or an eldest member of the family so as to alienate or part with such properties for the benefit of one or such other member.

8. Ratio of the decisions clearly postulates existence of joint Hindu Family constituting of either male members or one male member, by virtue of which after the death of Karta of the Joint Hindu Family, family continued to be Joint Hindu Family provided one male member exists. Mother being natural guardian can meddle with the interest of her minor children which is inclusive of male and female members. We are of the view that in the absence of male member, the famly property in the hands of widow and her female children cannot be characterised as Joint Hindu Family Property with a view to enjoin the widow to act as either Manager or as natural guardian to meddle with the family property with a view to bind the interest of minor daughters who will have succeeded to the estate of their father by virtue of succession under the provisions of Hindu Succession Act de hors the provisions of Section 8(3) of the M and G Act. Further a joint and undivided family may consist of persons who do not form any co-parcenary at all, it may consist of persons only provided there is amongst them a potential mother who in the way of nature or law may add a male member to it.

9. From the ratio of the above decisions, what is to be noted is that Hindu Joint Family can exist with one male member. While dealing with the powers of mother as natural guardian regarding the Joint Family Properties one thing is evident that existence of male member is contemplated. Further, there are instances where male member is a minor even then he can be construed as karta of the Joint Hindu Family and mother can as natural guardian of the Manager minor karta of Joint Hindu Family can meddle with the family properties for family necessity so as to bind all the members of Joint Hindu Family.

10. The question that arises for consideration is whether restrictions contained in S. 8 is applicable to cases where there is no male member in the family and mother as natural guardian of her minor daughters who constitute the family can alienate their shares so as to bind their shares which they have succeeded to the estate of their father, by virtue of Hindu Succession Act, who died intestate and that too when the family property was retained by him as the karta of the joint Hindu Family at the time of death. What is to be noted is that when father dies with sons and minor daughters who are also entitled to inherit jointly with the sons to the father's property under Hindu Succession Act, 1956 the interest of minor daughters in the property left by their father's property will be the undivided interest in the joint family pro- perty and Section 6 of the M and G Act would not apply, since there exists a Joint Hindu Family and share would be undivided interest. But in cases where father dies leaving behind only his wife and minor daughters, the question of family property retaining the character of Joint Hindu Family property does not exist and as such the operation of Section 8(3) of M and G Act is attracted. (NOTE THIS LAW CHANGES AFTER WOMEN IS GIVEN RIGHT TO PROPERTY UNDER 2005 AMENDMENT - DISCUSSION NEEDED)

11. Sales by mother as natural guardian of her minor daughters shares would not be binding on the minor daughters shares and all alienations have to be declared as void subject to the options to be exercised by the minor daughters since there exists no Joint Hindu Family in the instant case after the death of the father who has left no male issue.



In Amrutham Kudumbah v. Sarnam Kudumban reported Reported in AIR 1991 SC 1256 while discussing the scope of sub-section (3) of Section 5 of Minority. & Guardianship. Act, Supreme Court has observed at para. 9 as follows. It reads :

"The effect of this sub-section is that any disposal of immovable property by a natural guardian otherwise than for the benefit of the minor or without obtaining the previous permission of the court is voidable. A person entitled to avoid such a sale is either the minor or any person claiming under him. This means that cither the minor, or his legal representative in the event of his death, or his successor-in-interest claiming under him by reason of transfer inter vivos, must bring action within the period prescribed for such a suit, i.e., three years from the date on which the minor died or attained majority, as the case may be. In the present case, the suit was brought, as found by the Courts below, within three years after the minor attained majority."

Transaction in different documents between same parties Read together

The Supreme Court of India in the case of S. Chattanatha Karayalar v. Central Bank of India Ltd., (AIR 1965 SC 1856) held that : "Where a transaction between the same parties is contained in more than one document, they must be read and interpreted together and they have the same legal effect for all purposes as if they are one document."

In case of HER HIGHNESS MAHARANI SHANTIDEVI P. GAIKWAD Vs.SAVJIBHAI HARIBHAI PATEL & ORS. It is quoted from English decision that "Where several deeds form part of one transaction and are contemporaneously executed they have the same effect for all purposes such as are relevant to this case as if they were one deed. Each is executed on the faith of all the others being executed also and is intended to speak only as part of the one transaction, and if one is seeking to make equities apply to the parties they must be equities arising out of the transaction as a whole."

In case of Godhra Electricity Co. Ltd.& Anr.v.The State of Gujarat &Anr. It is quoted that "In the process of interpretation of the terms of a contract, the court can frequently get great assistance from the interpreting statements made by the parties themselves or from their conduct in rendering or in receiving performance under it. Parties can, by mutual agreement, make their own contracts; they can also by mutual agreement, remake them. The process of practical interpretation and application, however, is not regarded by the parties as a remaking of the contract; nor do the courts so regard it. Instead, it is merely a further expression by the parties of the meaning that they give and have given to the terms of their contract previously made. There is no good reason why the courts should not give great weight to these further expressions by the parties, in view of the fact that they still have the same freedom of contract that they had originally. The American Courts receive subsequent actions as admissible guides in interpretation. It is true that one party cannot build up his case by making an interpretation in his own favour. It is the concurrence therein that such a party can use against the other party. This concurrence may be evidenced by the other party’s express assent thereto, performances that indicate it, or by saying nothing when he knows that the first party is acting on reliance upon the interpretation."

WHETHER KARNATAKA LAND REFORMS ACT NEEDS AMENDMENTS IN CHANGING ECONOMIC CONDITIONS?

Karnataka Land Reforms Act 1961 commonly referred to by advocate brethrens as a law of tenancy in respect to agricultural lands. Beyond that another important aspect which is forgotten in these days by law enforcers and revenue department is regarding sale and purchase of agricultural lands.

Whenever there is a sale transaction of agricultural land a declaration in sub-registrar office have to be filed by both purchaser and seller as required under section 81A of Karnataka Land Reforms Act. Such declarations were made in falsify way by both sellers and purchasers either hiding their real non-agricultural income or by hiding their real extent of holding.

Section 63 of Karnataka Land Reforms Act prescribes the holding limits from 10 acres of A class land to 54 acres of D class land. Section 79A of Karnataka Land Reforms Act prescribes income limitation to acquire agriculture lands. No person having non agricultural income (either individually or in HUF) exceeding two lakh rupees in average for five years shall purchase agricultural lands. There are many instances of purchase of agricultural lands in individual names of a family exceeding holding limits.

Revenue department of Karnataka is hiding the website address which is showing online data of RTC’s of land holdings throughout the state. Such holdings of lands throughout the state may be viewed online at http://202.138.101.164/Home.aspx. When looked into extent of holdings there we find following types of illegal things approved by the active collusion of revenue department.

100's of acres of agricultural lands were purchased by non-agriculturists the shara in mutation registers lacks certification as to whether 79A and 79B of Karnataka Land Reforms Act has been verified or not.
The agricultural lands were purchased on behalf of some developers or builders in the name of directors.
The mutation shara in almost cases does not disclose as to amount for which such transaction of sale took place.
The sale transactions of small extents were rampant to avoid the income tax clearance and to avoid khatha change difficulties.
Some khathas were made out even after having statistics related to land holdings which violate section 63 of Karnataka Land Reforms Act.
Many associations, trusts, companies, have purchased agricultural lands directly in their names without getting suitable permission from government as provided under section 109 of Karnataka Land Reforms Act.
In many cases Deputy commissioners have violated their capacity to grant permission under section 109 to an extent not exceeding half an hectare. that is 1.25 acres or 50 guntas. The large extent over that has to be notified by government to exempt application of section 63, 79A, 79B or 80 of Karnataka Land Reforms Act.
Many revenue officials are using this restrictions to favour through corruption.
In some cases although affidavit and saral income tax returns copies are collected to test 79A, 79B violations. But revenue department is not verifying those documents by summoning relevant documents from Income Tax department. There are increased creations of forged saral copies. In a disclosed fraud in relation to application for loans with banks wherein more income showing copies are manipulated to get more loans, In this area low income saral copies are manipulated to show non-agricultural income below Rs 2 lakhs.
In order to shield illegal transactions some relevant informations were not entered in RTC's by Revenue departments.


The questions which hunt in my mind is whether Land Reforms Act need amendment or whether Land reforms act needs strict implementations. To get answers for this questions. Lets see what's happening in village side.

Naturally People dream of becoming rich overnight and enjoy the luxuries hereto found in cinemas. There is no such change in human tendency with regard to rural people. They too have ambitions to have materialistic life. That's why many people were found near single number lottery stalls before its ban.
Many rural people expecting crores together money for their agriculture lands, when once it was neglected by them as non-yielding and only consuming utility, they have left hopes on lands, but now a day farmer’s Bangalore agriculturist relatives are getting crores together money and their life styles are changing from cycle to scorpio. Many farmers in anticipation of changing their life styles also selling their lands, and many middle men investing on lands are utilising this selling phobia to their advantage.
If this type of investment criteria is left without a check to it what happens to production of food. Even if some land acquisition proposals are made people leave cultivating in their lands. If such mass scale desertion of agricultural activity moves unchecked, whether concrete jungles grow food for human consumption.
What happens to idle minds of farmers after they desert their primary occupation? One can see in villages/towns every house is having real estate agent. Every one is doing this broker business. To what extent it will flourish. Idle minds of farmers may be a cause of worry to the future police administration.
When present land reforms laws are there in existence people are violating it with all corrupt attitude. There is no respect towards laws of the legislature by the executive machinery. First of all non agricultural income of legislatures including their perks and others exceed two lakh rupees per year and the Legislatures themselves are not entitled to purchase agricultural lands. There are many instances of purchase of agricultural lands by legislatures. The law framing authority themselves violated their framed laws. Taking this loophole executive machinery as law enforcers are becoming corrupt.
Many Bar and Restaurants are having good business in and around Devanahalli, because every house hold got crores together money and some are spending on evil habits. What's happening to our peace loving farmer he was thrown to streets as drunkard, gambler, gangster, etc.
Litigant minded farmer who has sold land when it was in lakhs now in the greed of crores putting up litigations by finding one or other loopholes in the transactions. Many old cases of revenue records stray entries were digged up to create litigations and expecting money in turn for settlement.
Recent Hon’ble Karnataka High Court Judgment regarding women's Rights to property have brought in many ideas to dispute digging farmers. No limits to greed, no limits to materialistic needs are the chief causes for such peace less situations.
Many acquisition gossips are going on in many villages. Many realtors spread such gossip through revenue officials and purchase lands from farmers. Due to low returns from government acquisition proceedings farmers are selling to realtors. This type of land Mafia is working throughout state.
Litigation settling mafia is working in almost all places. Both litigants are pressurized to sell at cheap rates and settle their claims. Farmers in anticipation of quick money settle their genuine case with illegal litigant. Many litigations were unnecessarily created by financing through realtors and subsequent settlements take place with pressure from land mafia elements.



There is a need for social survey before there is any change in Karnataka Land Reforms Act. The below stated facts need to be surveyed to preserve our backbone of the country.

1. Whether people who sold lands are happy?
2. What type of avocation they have selected?
3. What are their problems even after they have money?
4. Whether they are happy with lands or with money?
5. How are they contributing to the development of economy?
6. How do they spend and save money?
7. How do their family relations changed when money got in?
8. Whether Joint family satisfaction is there without lands?
9. How many farmers children's are at cross roads?
10. What type of disputes arose after sale of agricultural lands?
11. How does the lifestyle changed?
12. Whether capable of maintaining such lifestyles in long run?
13. What is their sensational attachment to lands?
14. Whether there is any depression in the minds of farmers?
15. Whether they feel to migrate from their nearby village?
16. Whether they are spending on wise investments?
17. How many have spent money over re-acquiring lands in other places?
18. How many have created their bread earning routes for survival?
19. What is the educational development of children after sale of lands?

Few needed reforms under the present land laws.

1. Land records related to a land should be computerized to verify online the old records also related to a survey number.
2. The pending cases related to land records in revenue courts needs speedy disposal.
3. It is a sorry state of affairs that land tribunals are still having cases related to tenancies.
4. Retired Judicial officers should be appointed to dispose off the disputes pending in revenue courts.
5. The revenue record that is RTC’s should have entries related to land grants, land alienation orders, pending disputes both civil and revenue, RTC’s provided as surety in criminal cases needs to be entered to avoid misuse of farmers in criminal cases, the relevant columns of number of trees and other information needs to be updated.
6. It shall be mandatory duty of the Assistant commissioner’s that they should take action against uncultivated land holders under section 84 of Karnataka Land Reforms Act.
7. All the Government lands should be listed with specific words in RTC’s in order to avoid encroachments of Government lands.

8. Some NAK lands that is non-agricultural kharab’s having no entry of private persons names in RTC’s are siphoned off by private persons, As per section 67 of Karnataka Land Revenue Act those lands which does not belong to any individual shall be government land. When NAK lands have no entry of private persons names in RTC’s then it certainly belongs to Government.

9. Some tahsildar’s argue that NAK lands are alienated lands but revenue department circulars speaks other wise there is clear cut directions in circulars that all alienated lands should be entered in RTC’s with owners name to whom alienation order was given, with extent of alienation and purpose of alienation with order number and date. This is a mandatory duty of tahsildars as quoted in repeated circulars. But tahsildars are reluctant to take action against government land encroachers and almost of them are not ready to prepare list of government lands.

10. We have seen and witnessed allegations and counter allegations of government land encroachments from A.T. Ramaswamy report, when looked into actual reality thousands of acres of government lands were looted by private individuals by having created stray entries in RTC records. And some unchallenged orders were obtained from revenue courts with collusion of revenue authorities. Today we find scarcity of lands for burial of human body in Bangalore, At least government lands in each district to be preserved for construction of decent burial places without tombs so that our future generations may not be worried to dispose off our dead bodies.

11. The income limit for acquisition of lands needs proper documentation and verification. Revenue department should take written reply and documentary proof from IT department for verification of non-agricultural income.

12. Government should detect such violations of section 79A and 79B sue motto or pass a law to have voluntary disclosure with penalty so that there will be mass scale collection of funds which can be utilized for the welfare of farmers.
Government should pass strict law to enforce cultivation of agricultural lands by the holders of land, or to surrender land to landless labourers on fixed returns assuring landlords also of equal protection of their ownership.

13. Government should pass strict law not to convert fertile lands to non-agricultural purposes. There should be a survey of demarcation of fertile agricultural lands. The irrigation facility provided lands needs to be preserved from conversions to non agricultural purposes. Although there are repeated circulars from revenue department banning acquisition of fertile lands and preference of large holders rather than small holders in the matter of acquisition, little efforts were made to implement such circulars by the acquiring authorities.

14. The developmental activities like SEZ and others should be implemented in the area having “Banjaru Bhoomi”. Panchayath department is spending crores together money to make “Banjaru Bhoomi” a fertile land on the other side revenue department is acquiring fertile lands for industrial and other developmental purposes. When barren lands are identifiable by the sister department for spending grants and other developmental funds why the department of revenue not identifying barren lands before going in for acquisition of lands.

15. There should be some relaxation in respect to extent of holdings for genuine agricultural reasons. Each such holdings should account for its investment and returns so that speculative investments are best avoided.

16. There should be complete ban of alienations by a person who purchases land only for layout development. Such investors should be streamlined with previous permissions of government. Government should spell out its targeted layouts in targeted lands by bifurcating lands with class already under Karnataka Land Reforms Act.

17. There should be strict laws to preserve public tanks and rain water flowing Hallahs, the under ground water depletion is affecting water table and also causing warming of earth forecasting serious troubles. In the name of development no public tanks be destroyed, arrangements have to be made to preserve water in tanks and to preserve encroachments of rain water flowing raja galuve’s.

18. The Co-operative farming provisions under chapter VII of Karnataka Land Reforms Act needs to be encouraged by the government through various measures to give stiff competition to world economy.

To combat all the above discussed aspects of farming population’s present problems, our countries Land reforms agenda to preserve social Justice have to be strengthened by adoption of following aspects in all the state acts which is under grave threat of repealment due to globalisation. Our Advocate community in all states should insist upon preserving land reforms acts with several modifications suiting present needs.

1. The ceiling limit on land holding should be strengthened which is not followed in strict sense, many politicians and black money operators are investing on land by holding lands crossing ceiling limits. The action against those should be initiated.
2. The Co-operative farming mode shall be encouraged rather than allowing big extent of lands at the hands of few rich people.
3. Fertile agricultural lands should be strictly prohibited from alienating to non-agricultural use.
4. Fertile agricultural lands should not be acquired by state, for non-agricultural use.
5. State before acquiring private lands should check out whether any government waste lands are available for the purpose.
6. Not only tenants should be protected under land reforms but small and marginal farmers should be protected from constant threat of acquisition. Since in the name of threat of acquisition land mafia is increasing every where.
7. Land provided by Government for non-agricultural purpose to any parties should be used for such purpose within five years, failure on the part of allottees, should be taken serious action.
8. Surplus Land distribution should be made with greater transparency and publication. No political mis-use of such distribution shall be made.
9. List of farming community with photos and their land holdings should be published in a website, to check black money investments and allowing transparency in land affairs.
10. List of waste land and un-cultivated lands shall be published in website to allow any developmental activity over such lands.
11. Land Mafia and Land Hoardings should be seriously dealt with by having suitable “Land Reforms Judicial Magistrate” to entertain complaints on those matters.
12. Common property such as forests, grazing lands, water, fisheries, Tank, Pond, etc is to be held and managed through a community resource management system. By formulating a separate rules and regulations for it.
13. It would be important to widen the scope of land reforms beyond the mere activity of redistribution of land or revision of ceiling limit. In order to be effective, land reforms must be seen as part of a wider agenda of systemic restructuring that undertakes simultaneous reforms in the sectors of energy and water. These deeper structural reforms shall ensure that the exercise at redistribution of land actually becomes meaningful by enabling the small farmer to turn his plot into a productive asset.

CONCLUSION: It is time for all netha's and babu's of law department to think about the proper planning in utilization of agricultural lands. Development shall take place, not at the destruction of agricultural economy. Development shall take place, not only in construction of buildings and roads but also in construction of positive minds of people at large. Development without positive minded citizenship is a great curse to our future generations. People from agriculturist family may be left as Idle minds, certainly there will be lot of devil’s workshops that will ruin our future generations. Government should frame proper laws to preserve back bone of our country that is farmer and his lands.

WHAT IS MEANT BY RTC? HOW IT IS PREPARED IN KARNATAKA?

RTC MEAN RECORD OF RIGHTS, TENANCY AND CROPS

ITS ENGLISH FORM MAY BE VIEWD AT

http://www.bhoomi.kar.nic.in/Bhoomi/Images/Eng-RTC.jpg

The new register of Record of Rights, Tenancy and Crop Inspection (RTC) introduced as per Government Order No RD 606 LBD 59 dated 4.2.1961 and as prescribed in the Karnataka Land Revenue Rules, 1966 is maintained in Form-16 as a loose leaf register instead of the book form of Pahani Takhta or Pahani Patrike. This form a rearranged combination of some of the important village forms with a few more items of information added.

This is a very important Revenue record as it contains all possible data relating to lands held by an individual or group of individuals such as, area, assessment, water rate, classification of soil, number of trees, nature of possession of the land, whether acquired by registered or unregistered document by succession, partition, mortgage, liabilities, tenancy and details of crops grown, land utilization, area under mixed crops, etc. It is thus a combined document furnishing details about Record of Rights, Tenancy and Crops.

In the manual system the original RTC was maintained by the village accountant and a duplicate copy in the taluk office.

The RTC is maintained for each village separately, wherein all the survey numbers, sub-division of survey numbers and hissas are entered serially, one page being used for each survey number, sub-division or hissa. The ultimate unit for which the entries are made in the RTC register is a plot of land owned by an individual or a group of individuals(in case of joint ownership)

The particulars entered for each unit or hissa can be classified into two groups. Firstly, the items which generally do not change from year to year and are constant over a fairly long period. Such items are the identification number given to the unit, are, assessment, soil type, sources of irrigation and ayakat under each source, number of trees, person or persons in possession, the nature of possession, and the other rights and liabilities upon the land. Column numbers 1 to 11 of the RTC relate to this group. Secondly, items which vary from season to season, such as tenancy details, areas under different categories of land utilization, areas under various crops grown in the hissa, areas under current fallows, other fallows and the areas irrigated from different sources of irrigation Column numbers 12 and 13 of the RTC relate to this group. There is a provision for recording five years data with regard to the details of tenancy and cultivation under the second group of items.

If in the manual system a change took place in permanent or semi-permanent items i.e., information entered under columns 1 to 11, they were easily incorporated in the same form, because the number of changes were not likely to be many during the period of five years. Each change of ownership is be preceded and explained in the Mutation Register and the changes made in the RTC form will bear the corresponding serial number of the mutation register. If, however, survey number or the hissa is further sub-divided, additional forms for each new hissa were introduced in the blank forms kept at the end of the RTC register, mentioning a cross reference to the previous page.

After the preliminary Record of Records work was completed and the final Record of Rights was brought into operation, any further changes in the entries in the Record of Rights are called mutations. The manner in which the mutations are dealt with in order to maintain the Record of Rights up-to-date, is indicated in sections 128 and 129 of the Karnataka Land Revenue Act, 1964 and Rules 62 to 70 of Chapter IX of the Karnataka Land Revenue Rules, 1966.

HISTORY OF RECORDS OF REVENUE DEPARTMENT IN KARNATAKA

EXTRACTS FROM BHOOMI WEBSITE OF KARNATAKA GOVERNMENT

The Record of Rights has seen many changes in its size, contents and design (form) during the past several years. They can be grouped into two categories :l) Record of Rights prior to 1961, and2) Record of Rights after 1961.

1. The oldest record available for the year 1875-76 has 20 columns (Click here to see a sample) which gives details such as survey number, phot number, nature, area, owner details, cultivation, judi amount, and the changes (pherphar) in the name of the Khatedar.

2. The next record available for the years 1880-81 to 1884-85 has 26 columns (Click here to see a sample). This record gives the details such revision survey number, phot number, nature of land, name of the owner, area, assessment, details of crops and their share and land under cultivation, and the boundary repairs. This form appears to have continued upto 1905.

3. This record, village form number I- D (Click here to see a sample) for the year 1905-06 has 18 columns consisting serial number, survey number, phot number, name of the khatedar, area, assessment, details of changes in khatedar, tenancy details and other rights.

4. The design of the Record of Rights at the end of 1908 was to collect in one place full particulars of every distinct plot of land in the village, however small it may be. Sub-divisions of a survey number among different tenants were recorded, just as much as sub-divisions among different holders. For each plot the Record showed its area, its assessment, its nominal holder, the person actually in possession, and the name of the cultivator, with the terms of his tenancy.

5. Records for the years from 1911-12 to 1928-29(Click here to see a sample) consisted of survey number or phot number, registration number, net area under cultivation and phot kharab separately, agricultural assessment, name of the kabjedar, yearwise tenants name and lavani (cash or kind) and yearwise crop details.

6. The village record in Form 7, 7A and 12 available from 1931-32 (Click here to see a sample) onwards existed upto 1960. This record contains three parts: first part Form 7 contains the details such as survey number, hissa number, area – kirdsar and phot kharab, assessment-judi or special assessment, water share, kabjedar, other rights, rights of water channel etc., the second part Form 7A gives the yearwise name of the tenants and lavani, area and type, and the third part Form 12 gives yearwise and areawise crop details.

8. The form prescribed under the Karnataka Land Record of Rights Rules, 1961 was Form-V. It was called Pahani Patrike, Record of Rights and Tenancy Particulars (Click here to see a sample).

EXTRACTS FROM THE KARNATAKA LAND REVENUE ACT 1964

SECTION 127. Record of Rights.—(1) A record or rights shall be prepared in the prescribed manner in respect of every village and such record shall include the following particulars:—
(a) the names of persons who are holders, occupants, owners, mortgagees, landlords or tenants of the land or assignees of the rent or revenue thereof;
(b) the nature and extent of the respective interest of such persons and the conditions or liabilities (if any) attaching thereto;
(c) the rent of revenue (if any) payable by or to any of such persons; and
(d) such other particulars as may be prescribed.
(2) The record of rights shall be maintained by such officers in such areas as may be prescribed and different officers may be prescribed for different areas.
Land Revenue [1964: KAR. ACT 12 520
(3) When the preparation of the record of rights referred to in sub-section (1) is completed in respect of any village, the fact of such completion shall be notified in the official Gazette and in such manner as may be prescribed.


SECTION 128. Acquisitions of rights to be reported.—(1) Any person acquiring by succession, survivorship, inheritance, partition, purchase, mortgage, gift, lease or otherwise, any right as holder, occupant, owner, mortgagee, landlord or tenant of the land or assignee of the rent or revenue thereof, shall report orally or in writing his acquisition of such right to the prescribed officer of the village within three months from the date of such acquisition, and the said officer shall at once give a written acknowledgment of the receipt of the report to the person making it:
Provided that where the person acquiring the right is a minor or otherwise disqualified, his guardian or other person having charge of his property shall make the report to the prescribed officer:
Provided further that any person acquiring a right by virtue of a registered document shall be exempted form the obligation to report to the prescribed officer:
1[Provided also that any person reporting under this sub-section the acquisition by him of a right in partition in respect of the land shall annex with the report a sketch showing the metes and bounds and other prescribed particulars of such land and such person shall get the sketch prepared by a licensed surveyor.]1
1. Inserted by Act 14 of 1999 w.e.f. 30.4.1999.
Explanation I.—The rights mentioned above include a mortgage without possession but do not include an easement or a charge not amounting to a mortgage of the kind specified in section 100 of the Transfer of Property Act, 1882 (Central Act No. 4 of 1882).
Explanation II.—A person in whose favour a mortgage is discharged or extinguished or a lease determined acquires a right within the meaning of this section.
(2) Notwithstanding anything contained in sub-section (1), the State Government may, by notification, appoint any Revenue Officer to whom a report under sub-section (1) may be made, in which case such officer shall give a written acknowledgment of the receipt of such report to the person making it, and forward the report to the prescribed officer of the village concerned.
1964: KAR. ACT 12] Land Revenue 521
(3) If any person makes a report under sub-section (1) or sub-section (2),-
(a) after the period of three months but within the period of one year from the date of acquisition of the right, the report shall be received on payment of a penalty of two rupees;
(b) after a period of one year from the date of such acquisition, the report shall be received on payment of a penalty of not less than two rupees but not exceeding ten rupees, as may be ordered,—
(i) by the Tahsildar, in case the report is made under sub-section (1) to the prescribed officer, or
(ii) by the Revenue Officer, in case the report is made to such officer under sub-section (2).
(4) No document by virtue of which any person acquires a right in any land as holder, occupant, owner, mortgagee, landlord or tenant or assignee of the rent or revenue thereunder, shall be registered under the Indian Registration Act, 1908 (Central Act 12 of 1908), unless the person liable to pay the registration fee also pays to the registering authority such fees as may be prescribed for making the necessary entries in the record of rights and registers referred to in section 129; and on the registration of such a document, the registering authority shall make a report of the acquisition of the right to the prescribed officer.


SECTION 129. Registration of mutations and register of disputed cases.—(1) The prescribed officer shall enter in the Register of Mutations every report made to him under sub-section (1) of section 128 or received by him under sub-section (2) or sub-section (4) of the said section.
(2) Whenever a prescribed officer makes an entry in the Register of Mutations, he shall at the same time post up a complete copy of the entry in a conspicuous place in the chavadi and shall give written intimation to all persons appearing from the Record of Rights or Register of Mutations to be interested in the mutation, and to any other person whom he has reason to believe to be interested therein.
(3) Should any objection to any entry made under sub-section (1) in the Register of Mutations be made either orally or in writing to the prescribed officer, it shall be the duty of the prescribed officer to enter the particulars of the objection in a Register of Disputed Cases.
Land Revenue [1964: KAR. ACT 12 522
(4) The objections entered in the Register of Disputed Cases and such other objections as may be made during the enquiry shall be enquired into and disposed of by such officer and in such manner as may be prescribed. Orders disposing of such objections shall be recorded in the Register of Mutations by such officer.
(5) The officer holding an enquiry under sub-section (4) shall have all the powers under Chapter III, that a Revenue Officer has in making a formal or summary enquiry under this Act.
(6) Entries in the Register of Mutations shall be tested and if found correct or after correction, as the case may be, shall be certified by such officer as may be prescribed.
(7) The transfer of entries form the Registers of Mutations to the Record of Rights shall be effected in the prescribed manner, provided that an entry in the Register of Mutations shall not be transferred to the Record of Rights until such entry has been duly certified.

SECTION 1[129A. Patta Book.—(1) Every holder of agricultural land (including a tenant if he is primarily liable to pay land revenue therefor), shall be supplied by the prescribed officer with a patta book containing a copy of the record of rights pertaining to such land.
(2) The patta book shall also contain information regarding the payment of land revenue in respect of the land and other State Government dues of the holder or, as the case may be, the tenant, and information as respects the cultivation of the land and the areas of crops sown in it as shown in the village records and such other matters as may be prescribed.
(3) The patta book shall be prepared, issued and maintained in accordance with the rules made by the State Government in that behalf. Such rules may provide for fees to be charged for preparing, issuing and maintaining the book.]1
1. Inserted by Act 23 of 1982 w.e.f. 15.7.1982.


SECTION 130. Obligation to furnish information.—(1) Any person whose rights, interests or liabilities are required to be or have been entered in any record or register, under this Chapter shall be bound, on the requisition of any officer engaged in compiling or revising the record or register, to furnish or produce for his inspection within thirty days from the date of such requisition, all such information or documents needed for the correct
1964: KAR. ACT 12] Land Revenue 523
compilation or revision thereof, as may be within his knowledge or in his possession or power.
(2) An officer to whom any information is furnished or before whom any document is produced in accordance with a requisition under sub-section (1) shall at once give a written acknowledgment thereof to the person furnishing or producing the same 1[or may return the same immediately after keeping a copy of it, if necessary]1 and shall endorse on any such document a note under his signature, stating the fact of its production and the date thereof.
1. Inserted by Act 23 of 1982 w.e.f. 15.7.1982.
(3) Any person who fails to furnish information or produce the document required by sub-section (1) within the period specified in the said sub-section shall be liable to pay a penalty not exceeding twenty-five rupees, as may be fixed by the 1[Tahsildar]1 and the amount payable as penalty shall be recoverable as an arrear of land revenue:
1. Substituted by Act 5 of 1970 w.e.f. 23.10.1969.
Provided that no penalty shall be imposed under this sub-section without giving to the person concerned a reasonable opportunity to be heard.

To Purchase an Agricultural Land in Karnataka following eligibility should be there with purchaser

1. He or his family should not have assured annual Income of Rs 2 Lakh from non-agricultural sources (calculated as average of five years income of his all family members preceding date of purchase, Income is based on Total Income not net Income, Income from non-agricultural sources is important aspect). This aspect is not even exempted to acquiring land either through bequest or through inheritance. The section 79A (4) of Karnataka Land Reforms Act specifically prohibits inheritance also by siblings having assured annual Income of Rs 2 Lakh from non-agricultural sources.

2. Another Important aspect is the purchaser should be a personal cultivator. The documents which prove such personal cultivation is entry of persons name in column 12 of RTC FORM 16. He need not be an owner, he should be cultivator of agricultural land. Personal cultivator means cultivating land on his account by one’s own labour or by the labour of any member of his family or by hired labour or by servants under the personal supervision of oneself or through member of family.


3. Purchaser shall not purchase agricultural land on behalf of or for the use of educational Institution or religious Institution or charitable Institution or trust or society or company or association or body or co-operative society.

. It is well settled that an entry in Revenue Records does not confer title on a person whose name appears in Record of Rights

. It is settled law that entries in the Revenue Records or Jamabandi have only 'fiscal purpose' i.e. payment of land-revenue, and no ownership is conferred on the basis of such entries. So far as title to the property is concerned, it can only be decided by a competent Civil Court (vide Jattu Ram v. Hakam Singh and Ors., AIR 1994 SC 1653).

What rights does a Hindu child, who is born to persons whose marriage is declared void or voidable have under the Hindu Marriage Act?

Such a child is considered legitimate regardless of the status of the parent's marriage, if the marriage was performed according to Hindu rites under the Hindu Marriage Act, 1955 or was a civil marriage under the Special Marriage Act, 1954. Such a child may inherit the property of his parents. However, he/she does not acquire rights in relation to joint family or ancestral property.

What options are open to a woman whose husband marries someone else while still married to her? Is that bigamy?

Yes, marrying again during the lifetime of one's wife or husband is known as bigamy. It is a criminal offence, punishable with imprisonment and fine. A bigamous marriage is void, a complete nullity (see answer to question No.5). If a woman has prima facie evidence that she is lawfully married to a man who is about to or has remarried, she can register a criminal complaint and the police are expected to stop him from getting remarried. If a wife learns that her husband is going to marry again she can get an injunction from the court forbidding the marriage before it occurs. After it has taken place, a wife can ask the court for a "declaration" that the second or bigamous marriage is null and void. Proving bigamy, however, is not easy. The complainant wife has to prove that both the marriages, her own as well as the second bigamous one, have been performed properly according to the appropriate ceremonies. Most prosecutions for bigamy fail because the complainant does not have the proof of the bigamous marriage. The accused husband can usually successfully claim against all efforts to prove the contrary that essential parts of the ceremony were never carried out and escape punishment.

LAND REFORMS ACT AND - Alienation of Agricultural lands

All lands held by or in possession of tenants as on 1-3-74 other than those held by them under leases permitted under Sec.5 of the Karnataka Land Reforms Act 1961 have stood transferred to and vested in Government from 1-3-1974. All right, title and interest vesting in the owners of such lands and other persons interested in such lands, have ceased; and these are vested absolutely in the State Government free from all encumbrances (Sec. 44). These lands will ultimately be given to the tenants under the procedure laid down for the registration of tenants as occupants. There is an interval between devestment of the ex-land-lord and the registration of the ex-tenant. It is clear that during this interval neither the ex-landlord nor the ex-tenant (or sub-tenant) in actual occupation of the land, has any right of transfer of such land.

There are various ways in which lands become vested in Government under the Land Reforms Law. For instance lands in excess of the ceiling come to Government after the fulfillment of the due procedure. Disposal of all such lands is provided for under Sec. 77.

If a tenant holding land from a date prior to 1-3-74 is not entitled to be registered as an occupant or his right to become occupant becomes in-effective, such land will be brought under the surplus land pool and disposed of under Sec.77 (Sec. 59). When a tenant registered as an occupant fails to cultivate the land personally for three consecutive years he is to be evicted and the land is to be disposed of under Sec. 77 (Sec. 60).

Where a tenant has become occupant of a land, under the Land Reforms Act, he is prohibited from transferring such land for a period of six years from the date of issue of certificate under Sec. 55 by the Tahsildar. If such tenant desires to give up personal cultivation of the land of which he has been registered as an occupant, within six years of registration, he has to surrender such land to Government and get refund of the amount paid therefore under Sec. 72.

All the above provisions which mainly relate to the lands under lease as on 1-3-1974 and which have vested of will vest in Government should be specifically brought to the notice of the landlords and tenants by publicity at village level through all possible local media including Village Panchayats, Block Development Offices, Agricultural Extension Centers etc.

Chapter V of the Land Reforms Act contains the various restrictions on the holding or transfer of agricultural lands. Those who are specifically barred from holding agricultural lands are indicated below-
1. Non-cultivating persons.
2. Institutions not covered by Sec. 63 (7)
3. Companies
4. Associations or other Bodies
5. Co-operative Societies other than Co-operative forms
Persons having more than Rs. 12,000/- annual assured income from sources other than agriculture are barred from acquiring land after 1-3-1974.

Sec. 80 specifically bars sales of agricultural lands to non-agriculturists. Where lands under self-occupation are within the ceiling area fixed under Section 66 they can be transferred to someone who is entitled to hold it or acquire it, under the provisions mentioned above. If the transferee is an agriculturist who is a self-cultivator he must be one holding less than the ceiling area. Even so the transfer can only take place provided the purchaser's holding after the purchase does not exceed the ceiling area. Even future acquisition of land by way of inheritance, bequest etc. by a person already holding land up to the ceiling limit on 1-3-1974 is prohibited by Section 64. Lands so acquired are to be declared and surrendered to Government.

The Assistant Commissioner of the Sub-division is the authority empowered to enquire into illegal transactions under the Land Reforms Act and make a declaration that any particular transaction is in contravention of the provisions of the provisions of the Act, on such declaration the transaction shall be null and void and the land in respect of which such transaction has taken place shall be forfeited to and vest in the State Government. No amount shall be payable therefore.

From 1-3-1974 restrictions on alienation of holdings by persons owning land in excess of the ceiling limit fixed under the Karnataka Land Reforms (Amendment) Act, 1973 have come into operator and any alienation which prima face appears to be in contravention of the Land Reforms Law has to be dealt with under Sec. 83.

Penalties for the various offences under the Law are provided in Sec. 125 of the said Act.

All the Village Accountants and the local Revenue Officers should be suitably educated by the Tahsildars on these provisions of the Land Reforms Act and they in turn should be asked to a devise the Agriculturists appropriately.

Inquiry regarding illegal transactions regarding Section 83 of the Karnataka Land Reforms Act, 1961

Sl No 8


Circular Number RD 339 LRM 74

Date 12/24/74

Section Land Reforms

Subject Inquiry regarding illegal transactions regarding

Body GOVERNMENT OF KARNATAKA
No. RD 339 LRM 74 Karnataka Government Secretariat,
Vidhana Soudha,
Bangalore, Dated: 24th December 1974.
C I R C U L A R

Sub: Inquiry regarding illegal transactions regarding.
Under Section 83 of the Karnataka Land Reforms Act, 1961, the prescribed authority shall, after a summary inquiry, determine whether the transaction reported to it under section 82 or coming to its notice in any other manner is in declaration of the provisions of this act, and make a declaration accordingly. Any transaction so declared to be in contravention of any of the provisions of this act shall be NULL AND VOID. But it has been brought to the notice of the Government that some of the Assistant Commissioners functioning as "prescribed authority" enter Section 83 are dismissing complaints preferred before them by private persons about the transactions contravening Section 80 of the Land Reforms Act on the ground that the persons who preferred the complaint have failed to appear and prosecute the application. This procedure is not correct. The prescribed authority has to take action on the basis of any information received by it form any source and it cannot dismiss the complaints and close the proceedings on the ground that the complaints has defaulted to put in appearance. When once the Assistant Commissioner has received information from any source that a particular transaction contravenes the provisions of the Land Reforms Act, the proceedings can be closed only after he has examined the merits of the case and come to the conclusion either that the transaction is 'null and void' being in contravention of the provisions of the Act or that there has been no contravention of the provisions of the Act. After the amendment of Section 83 which has come into force on 01.03.1974, all land involved in Transactions and declared as null and void by the prescribed authority shall be forfeited to and vest in Government. Hence, it is the Government which is ultimately interested in getting the transaction declared as null and void.

(N.B.Sakharadande)
Asst. Spl. Officer for L.R. & Ex-officio
Under Secy. to Govt. Rev. Dept.

Implementation of Sec.79A and 79B of Karnataka Land Reforms Act.

Sl No 1175


Circular Number RD 94 LRM 38

Date 06/09/88

Section Land Reforms

Subject Implementation of Sec.79A and 79B of Karnataka Land Reforms Act.

Body GOVERNMENT OF KARNATAKA
No.RD 94 LRM 38 Karnataka Government Secretariat,
M.S.Building, III Stage, Vth Floor,
Bangalore, dated 9th June, 1988
CIRCULAR

Sub: Implementation of Sec.79A and 79B of Karnataka Land Reforms Act.
-------------
While inspecting some of the Taluka Offices in Bangalore District, the Special Cell in Revenue Department has observed that cases involving violations of Section 79A of the Karnataka Land Reforms Act were detected on the basis of entries made in the mutation registers and notices were accordingly issued to the parties asking them to file their declarations under section 79A(4). In many if these cases although the parties had not responded to the notices, and the Tahsildars have levied a penalty of Rs.500/- ex-parte and then forwarded the papers to Assistant Commissioner for taking further action under section 83 of the Act. At the Assistant Commissioner's level also ex-parte orders have been passed forfeiting the properties invloved in such cases in favour of the Government. At no level therefore has any authority taken due care to verify whether there is in fact any violation of the provisions of section 79A.

It is further observed that there is a good deal of confusion is understanding the relevant provisions of the Act. Section 79A(4) Stipulates that persons acquiring land in violation of the provisions of the Karnataka Land Reforms Act should declare the same to the Tahsildar. However the consequences of filing such a declaration are such as to act as a deterrent to this course of action. On the other hand at the time of registering the transaction itself the party should have filed a declaration to the effect that provisions of the Karnataka Land Reforms Act have not been violated therby keeping these aspect in view, all such cases should be dealt with under section 32 of the Act after examining the legality or otherwise of the transaction in the first instance. This examination should be done by the revenue Inspector/Shoristedar at the time of certifying the concerned mutation entry itself. Further more filing of the declaration should be insisted upon when the parties claim to have acquired the land by inher Thus the Revenue Inspector should maintain a separate register for recording all these illegal transactions and send a report every month of these fresh cases to the Tahsildar for appropriate action. He should also maintain a register showing the declaration. He should also maintain acquiring land by inheritance. The proformae for both these registers are given in the annexure.

It is observed that efforts have also not been made to identify the violations of section 79B of the Act. The Tahsildar should therefore prepare a list of all institutions and associations functioning in his taluks, village wise and verify whether they own any agricultural lands. If any of them are found to have not filed the prescribed declarations under section 79A(4) either before the Land Tribunal or Deputy Commissioner, a notice should promptly issued asking them to do the needful. After the declarations are filed, the Tahsildar should conduct an inquiry Under Rules 31 of the Karnataka Land Reforms Rules and send the papers to Deputy Commissioner for necessary action.

In certain cases it has been observed that when the Tahsildar issued notices to them to file declaration under saction 79A(4), the parties produced orders issued by the Assistant Commissioners granting them permission to purchase lands under section 80 of the karnataka Land Reforms Act. One of the conditions imposed while granting such permission was that the party must take up agriculture within a year and that if he gives up agriculture within 5 years, the land will vest in Government. Yet it is further observed that in many of such cases, the parties have succeeded in getting the lands converted for non-agricultural use immediately after the purchase in violation of the conditions imposed while granting the permission to purchase agricultural lands. Therefore, it is quite essential that the Assistant Commissioner maintains a register for recording all those cases where permissions are granted under section 80 of the Karnataka Land Reforms Act and closely watches the ulilizations of the land for the purpose for which permission is granted. If the land is not being used for the purpose for which permission was granted, the Assistant Commissioner should immediately proceed to cancel the said permission and resume the land to Government. The proforma for this register is also suggested in the annexure.

The lapous and discrupanclus pointed out above have accept in, in view of the fact that this particular item of work is not being maintained by superior officers like Assistant Commissioners/Deputy Commissioner/Divisional Commissioners and ther has been no proper guidance imparted to the Tahsildars and lower level officers in this respect. By not inspecting this item of work mistakes committed un-wittingly go corrected and cases which are deliberately committed remain undetected.

It is felt that many more such lapses and discrepancius are likely to surface if detailed inspections are carried out in all the Districts. The Divisional Commissioners and Deputy Commissioners and therefore requested to see that the above observations are duly noted and these instructions are carried out faithfully by all concerned, by making the scrutiny of these registers and the follow up action taken thereon a regular part of their inspection programmes from now onwards.


(J.ALEXANDER)
Revenue Commissioner.

Eviction of unauthorised occupation of certain lands LIKE village Forests, Devarakadus, Uruduve, Gunduthopu, Tankbed, Phut Kharab, Kharab Halla,ETC

Sl No 401


Circular Number RD 91 LGP 92

Date 05/22/93

Section Land Grants

Subject Eviction of unauthorised occupation of certain lands – Instructions regarding.


Body GOVERNMENT OF KARNATAKA
No. RD 91 LGP 92 Karnataka Government Secretariat,
M. S. Building, Bangalore, Dated : 22nd May 1976.
C I R C U L A R
Sub: Eviction of unauthorised occupation of certain lands – Instructions regarding.

Government have from time to time issued instructions that lands specifically assigned for public purposes and lands meant for the common use of the village should not be allowed to be unauthorisedly occupied by any person. If there is any unauthorised occupation of such lands then the same shall be ruthlessly removed by following the due procedure of law and imposing the punishment provided under the law.

2. It has come to the notice of the Government that the Revenue Authorities have not followed the instructions of Government in letter and spirit, resulting in unauthorised occupation of such lands and requests of such unauthorised occupants for grant or regularisation of the same. In several cases, such lands have also lost their original characteristics because of unhindered unauthorised occupation.

3. It is hereby reiterated that lands such as village Forests, Devarakadus, Uruduve, Gunduthopu, Tankbed, Phut Kharab, Kharab Halla, Date-reserve, Burial grounds and the like assigned for special purposes under Section 71 of the Karnataka Land Revenue Act or vested with the Panchayath for the common use of the villagers, shall not be granted or regularised and the Government has no intention to even regularise unauthorised occupation occurring in such lands. Even Rule 108I of the Karnataka Land Revenue Rules relating to the regularisation Scheme brought into force by Government under Section 94A of the Karnataka Land Revenue Act, 1964 prohibits regularisation of unauthorised occupation in such lands. As unauthorised occupation in the above said lands cannot be regularised, the Revenue Authoritics shall take prompt necessary action for eviction of unauthorised occupation by following the due procedure laid down under the law. Any lapses in this regard shall be viewed seriously by the Government.
(C. T. BENJAMIN)
Commissioner & Secretary to Government,
Revenue Department.

Grant of GOVERNMENT land to private institutions and others guidelines

Sl No 218


Circular Number RD 126 LGP 87

Date 06/30/88

Section Land Grants

Subject Grant of land to private institutions and others guidelines, Reg

Body GOVERNMENT OF KARNATAKA
No. RD 126 LGP 87. Karnataka Government Secretariat,
Multi-Storeyed Building,
IIIrd Stage, 5th Floor, Bangalore, Dated 30th June 1988.
C I R C U L A R
Sub: Grant of land to private institutions and others guidelines, Reg.,
Numerous proposals are being received in Government for grant of land for public purposes to various institutions, It is observed that the proposals are not always scruitinised properly, before being sent to Government thus necessitating avoidable delays and back references. The following guidelines are issued;

(1) As far as possible, available Government lands with in a radius of 10 K.M.s from Bangalore City Corporation limits should be reserved only for the use of state Government or Central Government proposals and such other schemes. These lands shall set be granted or leased to any private institutions/Trusts.

(2) The applicant institution must be registered under the Co-operative Society's Registration Act or under the Registration of Societies Act.

(3) The purposes for which it requires the land should be in accordance with its by laws and a copy of the Societies bye laws along with with audited statement of accounts should be submitted. The Scheme for development of the land along with proposed utilisation thereof accounts should be submitted. The Scheme for development of the land along with proposed utilisation thereof and the funds available for the purpose should verified.

(4) The classification of the land proposed for grant should be indicated clearly along with extracts of the necessary records. In cases where Gomal is proposed to be granted, it should be clearly mentioned whether the gomal is sufficient for village cattle. If there is insufficient gomal, whether there are any alternative arrangements for grazing of the village cattle. The opinion of the Mandal Panchayat should also be obtained for reducing the Gomal land through a resolution of the Mandal Panchayat. In case of other Government lands the relevant provision of the rules should be made applicable.

(5) Whether the land applied for falls under Green Belt should be clearly indicated;

(6) Present market value with reference to the sale statis available in the sub-registrar's office should be stated.

(7) An upto date list of members of the Society/Institution should be furnished.

(8) Financial position of the Society/Institution.

(9) In case of educational institution, a copy of the certificate of grant issued by Education Department should be enclosed.

(10) A copy of the current years audit report should be enclosed.

(11) Approved Plans and Estimates of the proposed constructions should be enclosed.

(12) The extent of land already in their possession should be indicated.

(13) The genuine need of the institution/ trust and the extent of land actually required.

(14) The actual pattern of utilisation contomplated within a prescribed time limit.

(15) The extent to which the institution or trust is catering to the poor and economically weaker sections, specially the SC & ST's. In other words the socio-economic purpose that is being served by the concerned institution and to what extent the lease/ grant of land is required to promoto this function.

(16) Consent of the institution to pay the market value

(17) All such proposals shall be examined by the Deputy Commissioner and routed through the Divisional Commissioner.

The Deputy Commissioners of Districts are requested to see that the above particulars are obtained and scrutinised before taking action to sanction the land to the institutions, wherever the approval of Government is necessary the above said particulars should be furnished invariably along with their specific recommendation for grant or otherwise.

A check list of the various items to be scrutinised is also enclosed which should invariably be sent along with the proposals submitted to Government in future.


(BETTAVEERAIAH)
Under Secretary to Government,
Revenue Department.

Restrictions regarding grant of land in and around big cities for agricultural and non-agricultural purposes.

Sl No 429


Circular Number RD 504 LGB 73

Date 12/04/73

Section Land Grants

Subject Restrictions regarding grant of land in and around big cities for agricultural and non-agricultural purposes.

Body GOVERNMENT OF KARNATAKA
No. RD 504 LGB 73. Karnataka Government Secretariat,
"Vidhana Soudha,"
Bangalore, dated: 4th December 1973.
From
The Secretary to the Government of Karnataka,
Revenue Department.
To
The Divisional Commissioner,
Bangalore Division,
Bangalore.
Sirs,
Sub:- Restrictions regarding grant of land in and around big cities for agricultural and non-agricultural purposes.
Ref:- Govt. Letter no. RD 113 GNA 70 dated 27-7-1970.
The Karnataka Land Grant Rules, 1969, impose certain restrictions on the disposal of lands in and around big cities. Notwithstanding this prohibition, recommendations are made for grant of lands relaxing the rules. The intention of prohibit-ing the assignment of lands within certain limits of big cities is to have a planned development of the city and to reserve lands required for Government and public purposes. Government, therefore direct that proposals for assignment of lands within the prohibited areas should not be sent to Government for assignment in relaxation of rules hereafter. The Deputy Commissioners may be directed to list out the available Government lands in and around big cities and send the list to Government for reference. After preparing such a list, the land use as per the outline development plan if any will have to be ascertained from the Town Planning Authority concerned, and Government addressed to transfer all Government lands in the Industrial Zone to the Karnataka Industrial Area Development Board and lands in residential zones will have to be made available to the Municipality/Corporation after reserving extents earmarked for Government Offices and quarters. This will have to be done expeditiously to avoid further deviation in the use of the lands for any other purpose.
If any of the area within the prohibited limits is under u-nauthorised occupation and applications for regularisation of the same u-nder the 1970 Rules are pending before the local Officers, they may be directed to dispose off the same expeditiously and pass final orders rejecting the confirmation so that the legal action can be taken to evict them from such lands.
Yours faithfully,
Sd/-
(H. Marigowda)
Under Secretary to Government,
Revenue Department,

DATE GROVE LANDS ARE FOREST RESERVE LANDS

Circular Number RD 93 LGP 78

Date 07/19/78

Section Land Grants

Subject Declaration of Date Reserve Land as Forest Reserve Lands under Section 71 of the Karnataka Land Revenue Act, 1964

Body GOVERNMENT OF KARNATAKA


No. RD 93 LGP 78. Karnataka Government Secretariat,
Vidhana Soudha,
Bangalore, Dated : 19th July 1978.
C I R C U L A R
Sub: Declaration of Date Reserve Land as Forest Reserve Lands under Section 71 of the Karnataka Land Revenue Act, 1964.

A decision has been taken by the Home Department in consultation with the Revenue Department as well as the Forest Department to declare "the Date Grove Lands" under Section 71 of the Karnataka Land Revenue Act, 1964. After such declaration the Forest Department will declare these lands as protected Forest under Section 33(4) of the Karnataka Forest Act, 1963.

Hence, the Deputy Commissioners are requested to take necessary action to complete the work of notifying Date Grove Lands as Forest Reserve Lands under Section 71 of the Karnataka Land Revenue Act, 1964 urgently and to furnish those copies of Notifications to the Secretary to Government of Karnataka, Food & Forest Department and Home Department and ton the Chief Conservator of Forests (General), Bangalore.
This may be treated as urgent.



(M. MALLAIAH),
Under Secretary to Government,
Revenue Department.

GOVT CIRCULAR TO PREVENT ENCROACHMENT OF TANK BEDS NEEDS STRICT IMPLEMENTATION

Sl No 208


Circular Number RD 14 LGP 84

Date 01/17/84

Section Land Grants

Subject Encroachment of Tank-beds – Preventive action to be taken


Body GOVERNMENT OF KARNATAKA
No. RD 14 LGP 84 Karnataka Government Secretariat,
Vidhana Soudha,
Bangalore, Dated 17th January 1984.
C I R C U L A R
Sub: Encroachment of Tank-beds – Preventive action to be taken

Ref: Govt. O. M. No. RD 36 LGP 83, dated 25th June 1983
- - -
In the official Memorandum referred to above, instructions have been issued by Government as to the measures to be taken by the Field Revenue Officers to prevent fresh encroachments on Government lands. It has been made clear therein that fresh encroachments upon Government lands should not be allowed with effect from 1st July 1983 and that the concerned Field Officer will be held personally responsible for the same.

2. However, it has now come to the notice of Government that large scale encroachments are still taking place on Government lands and particularly tank beds. These encroachers seem to have been emboldened by the recent Government decision to regularise encroachments, as reported in the news papers. The question of regularisation of encroachments on tank-beds and other places will be on merits of each case and within the framework of Land Grant Rules. Wholesale regularisation of encroachments on tank-beds (or other Government lands) is never envisaged. Only if the tank is out of commission or if it is breached, after following due process only such cases of encroachment will be considered for regularisation on merits after obtaining the technical opinion of the Public Works Department.

3. To stress the point, it may be repeated that all encroachments on tank beds will not be automatically considered for regularisation. Hence, Government reiterate that no fresh encroachments should be allowed to take place on tank-beds in particular and also on other Government lands in general. Fresh encroachers of tank-beds and other Government lands should be dealt with severely and prompt action should be taken to evict such encroachers from the tank-beds.

4. The Divisional Commissioners of the Divisions and the Deputy Commissioners of Districts are requested to issue suitable instructions to all the Revenue officers/officials under their control and to ensure that no fresh encroachments take place on tank-beds in particular and other Government lands in general. The field officers should be held personally responsible if fresh encroachments take place and they should be dealt with severely for any slackness or laxity in this regard.

5. The receipt of this Circular should be acknowledged.

(S. VENKATESH)
Revenue Commissioner &
Secretary to Government,
Revenue Department .

GOVERNMENT CIRCULAR ON GOMAL LANDS NEEDS STRICT IMPLEMENTATION

Sl No 518


Circular Number RD 84 LGP 74.

Date 12/01/74

Section Land Grants

Subject Gomal and other Government lands vested in the Local Bodies – Unauthorised occupation and disposal – instructions reg –


Body GOVERNMENT OF KARNATAKA

No. RD 84 LGP 74. Karnataka Government Secretariat,
VIDHANA SOUDHA,
Bangalore, dt Dec . 74
CIRCULAR
Sub :- Gomal and other Government lands vested in the Local Bodies – Unauthorised occupation and disposal – instructions reg –

It has come to the notice of the Government that Gomal and other Government lands vested in the Local Bodies, specially the village Panchayats, are being granted to individuals, often with the connivance of the Local Revenue Officers. It has also come to the notice of the Government that unauthorised occupation of lands by the well-to-do agriculturists are also being regularised by local revenue officers. Such action is contrary to the rules (the Karnataka Panchayats ( Acquisition and Transfer of Moveable and Immovable Property ) Rules 1960 and the corresponding rules applicable to Taluk Boards ) and a branch of the policy enunciated by the Government from time to time.

It is, therefore, impressed upon the Divisional Commissioners of the Divisions and the Deputy Commissioners of the Districts to warn all revenue staff under them against such unauthorised disposal of lands by Village Panchayats and Local bodies.

The Deputy Commissioners of the Districts are hereby requested to keep a strict watch over the grants, transfers and regularisation of lands vesting in the Local Bodies, to prevent such illegal grants or regularisation, more particularly those in favour of the affluent sections of society.

( H. Marigowda ),
Under Secretary to Government,
Revenue Department.

PROCEDURE IN REGISTRATIONS AND AFTER EFFECTS

The registering authorities for the purpose of ascertaining whether the document prescribed falls under any of the categories cited at (a) to (f) below is required to call for the documents referred to above from the parties presenting the documents. If they fail to produce the relevant documents in time as specified by the registering authorities, the registering officer may refuse to register the document in accordance with section 22A(2) of the Registration Act, 1908. If the required document are not produced then an endorsement in the prescribed form shall be given to the parties.


The parties presenting the document for registration shall produce all the required relevant information in two sets duly certified as true copies.


The registering officer after registering such documents should send a copy of the registered document to the Tahsildar of their respective jurisdiction with all relevant information, documents, affidavits and evidence collected.


The Tahsildar on receipt of the copy of the document registered and all other relevant information, documents and affidavits received from the Sub-Registrar shall verify the same. If there is any violation of the provisions of the Acts and Rules specified in the Notification No.RD 56 MUNOSA 99 dated 10th May 1999 shall immediately report the matter to the concerned Assistant Commissioner of the Revenue Sub-Division or the Deputy Commissioner of the district as the case may be, and the District Registrar of the District to initiate action in accordance with law to treat the transaction as null and void.


The Assistant Commissioner of the Revenue Sub-Division, the Deputy Commissioner of the district and the District Registrar of the district shall initiate action against the concerned parties presenting the document for registration for furnishing false and fictitious information, in accordance with law.


All the Sub-Registrars in the state are hereby directed not to register the documents in contravention of section 22A of the Registration Act, 1908 and this circular instructions shall strictly be followed. Any violation or irregularity noticed will lead to serious disciplinary action against the officers concerned.
List of documents required to be produced at the time of registration of sale of properties referred to above should be displayed prominently in the Notice Board for the information of the public.

These circular instructions shall be strictly followed. Any violation or lapse on the part of the Tahsildar and the Assistant Commissioners incharge of the Revenue Sub-division would be viewed seriously, leading to disciplinary action against the concerned officers.

The Government have taken serious notice of the violation of the provisions of various Acts/Rules detailed in the Notification No. RD 80 ESM 93 (P) dated 14th February 1994. The Tahsildar, Assistant Commissioners incharge of Revenue Sub-division and the Deputy Commissioners of the Districts are not detecting and preventing land transactions in contravention of the provisions of the various Acts/Rules. They shall verify the relevant documents and registers with the Village Accountants and the Taluk Offices to ascertain the violation of the provisions of the Acts/Rules detailed in the Notification No. RD 56 MUNOSA 99 dated 10th May 1999.

In addition, the Assistant Commissioner should initiate action against the concerned parties for having furnished false affidavits, documents, extracts and other information under the provisions of the Indian Penal Code.

The Assistant Commissioner incharge of the Revenue Sub-Division has to hold the enquiry under Section 83 of the Karnataka Land Reforms Act, 1961 by issuing notices to the concerned parties. After hearing the concerned parties, the Assistant Commissioner incharge of the Revenue Sub-Division has to pass a considered order holding that the sale transaction is null and void. The agricultural land so sold in contravention of Section 61 of the Karnataka Land Reforms Act, 1961 has to be resumed to Government and disposed in accordance with the provisions of Land Grant Rules, 1969.

On receipt of the registered document with its enclosures from the concerned Sub-Registrars, the Tahsildars shall cause verification at their end on the genuineness of the certificates, extracts, documents, affidavits etc., furnished by the concerned parties at the time of registering the documents.



Ref:- Government Notification No. RD 56 MUNOSA 99 Dated:- 10-05-1999.

DOCUMENTS NEEDED FOR REGISTRATION OF AGRICULTURAL LAND

(1) An affidavit stating that the transaction is not violative of the categories mentioned in the Notification Under Section 22A of the Indian Registration Act.

(2) Copy of the RTC of the property involved in the transfer.

(3) Copy of the extract of mutation register regarding the latest mutation of the property.

(4) If the property is a granted land or occupancy rights have been granted under Land Reform Act then NOC from the Tahsildars.

(5) Declaration under Section 81A of the Land Reform Act.

(6) Form No.1 prescribed in the Karnataka Stamp (Prevention of under valuation) rules.

(7) Income Tax Clearance Certificate prescribed under 230 A of the Indian Income Tax Act for properties which are valued at more than five lakhs.

Note:- w.e.f 1-6-2000 production of form no. 34A under section 230A is not necessary as per finance act 2001.

(8) Income Tax Clearance Certificate in Form 37-I prescribed under Section 269 of the Indian Income Tax Act issued by the appropriate authority of the Income Tax Department, if the value of the property is more than Rs.25 lakhs in the prescribed Area

(9) Permanent account No. issued by Income Tax Department or declaration in form 60 or 61 if the value of the property involved in the transaction is more than 5 lakhs, and where the payment is made completely or partially through cash.

DOCUMENTS NEEDED FOR REGISTRATION OF SITES

(1) An affidavit stating that the transaction is not violative of the categories mentioned in the Notification Under Section 22A of the Indian Registration Act.

(2) Extract of assessment register for the purpose of valuation of the property. (Form No.19 in case of Municipal areas or Form No.9 or 10 in case of Panchayat Areas.)

(3) Form No.1 prescribed in the Karnataka Stamp (Prevention of under valuation) Rules.

(4) Income Tax Clearance Certificate prescribed under section 230A of the Indian Income Tax Act for the properties which are valued more than five lakhs.

(5) Income-tax clearance certificate in Form 37 I prescribed under Section 269 of the Income Tax Act issued by the appropriate authority of the Income Tax Department, if the value of the property is more than Rs.25 lakhs in the prescribed Area.

(6) Permanent account No. issued by Income Tax Department or declaration in form 60 or 61 if the value of the property involved in the transaction is more than 5 lakhs, and where payment is made completely or partially through cash.

(7) For vacant sites in areas where ULC Act is in force, an Acknowledgment for having submitted Application Form Under Section 26 of the said Act.

REGISTRATIONS OPPOSED TO PUBLIC POLICY

NOTIFICATION u/s 22A of the Registration Act, 1908
(Opposed to Public Policy)

NOTIFICATION

[Notification No. RD 56 munosa 99 dated 10-5-1999].

In exercise of the powers conferred by Section 22-A of the Registration Act, 1908 (Central Act No.16 of 1908) as amended by Karnataka Act No.55 of 1976 and in suspersession of the Notification No. RD 80 ESM 93 (P) dated 14-2-94, Notification No. RD 80 ESM 93 (P) dated 23-3-96 and Notification No. RD 137 MUNOMU 96 dated 21-3-97 the Government of Karnataka hereby declares the Registration of the following documents as opposed to public policy:-

(a) Agreement to sell, sale, gift, exchange, mortgage, lease or assignment of land of which the occupancy right has been granted under Chapter III of the Karnataka Land Reforms Act, 1961 in contravention of the restrictions imposed under section 61 of the said act and the rules framed thereunder.

(b) Agreement to sell, sale, gift, exchange or otherwise of any land in excess of the ceiling limit specified in section 63 or 64 of the Karnataka Land Reforms Act, 1961 in contravention of section 74 of the said act and the rules framed thereunder.

(c) Agreement to sell, sale, lease, mortgage with possession or otherwise of any agricultural lands to a person or a family or a joint family who or which has an assured annual income of rupees Two lakhs and above from sources other than agriculture in contravention of section 79-A of the Karnataka Land Reforms Act, 1961 and the rules framed thereunder.

(d) Agreement to sell, sale, lease, mortgage with possession or otherwise of any agricultural land to an educational, religious, charitable>

(e) Agreement to sell, sale, gift, lease, mortgage with possession or otherwise of any agricultural land granted under the Karnataka Land Grant Rules, 1969 subject to restrictions on sale, transfer, and specific use imposed thereunder as per the provisions of the said Rules.

(f). Agreement to sell, sale, lease, mortgage with possession or otherwise of any land in contravention of the provisions of the Urban Land (Ceiling and Regulations) Act, 1976 (Central Act 13 of 1976 dated: 14th October, 1988)(Urban Land (Ceiling and Regulations) Act, 1976 (Central Act 13 of 1976 deleted during the year 1999.)



In supersession of the Notification RD 80 ESM 93 (P) dated 14-02-94, Notification No. RD 80 ESM 93 (P) dated:-23-03-96 and Notification No. RD 137 MUNOMU 96 dated 21-03-97, the Government in exercise of the powers conferred by Section 22-A of the Registration Act, 1908 has issued the revised Notification No. RD 56 MUNOSA 99 dated:10-05-99 declaring the registration of the following documents as opposed to public policy:-

(a) Agreement to sell, sale, gift, exchange, mortgage, lease, or assignment of land of which the occupancy right has been granted under Chapter III of the Karnataka Land Reforms Act, 1961 in contravention of the restrictions imposed under section 61 of the said act and the rules framed thereunder.

(b) Agreement to sell, sale, gift exchange or otherwise of any land in excess of the ceiling limit specified in section 63 or 64 of the Karnataka Land Reforms Act, 1961 in contravention of section 74 of the said act and the rules framed thereunder.

(c) Agreement to sell, sale, lease, mortgage with possession or otherwise of any agricultural lands to a person or a family or a joint family who or which has an assured annual income of rupees Two lakhs and above from sources other than agriculture in contravention of section 79-A of the Karnataka Land Reforms Act, 1961 and the rules framed thereunder.

(d) Agreement to sell, sale, lease, mortgage with possession or otherwise of any agricultural land to an educational, religious, charitable

(e) Agreement to sell, sale, gift, lease, mortgage with possession or otherwise of any agricultural land granted under the Karnataka Land Grant Rules, 1969 subject to restrictions on sale, transfer, and specific use imposed thereunder as per the provisions of the said Rules.

(f) Agreement to sell, sale, lease, mortgage with possession or otherwise of any land in contravention of the provisions of the Urban Land (Ceiling and Regulations) Act, 1976 (Central Act 13 of 1976 dated: 14th October 1988).

KARNATAKA HIGH COURT HAS RECOGNISED WOMEN RIGHT TO PROPERTY OF JOINT FAMILY IRRESPECTIVE OF CUT OF DATES OF MARRIAGE

READ THIS PAPER REPORT FROM KANNADAPRABHA 19-09-07 BY CLICK OVER IT


REASON FOR SUCH DECISION IS THERE IS NO CUT OF DATE PRESCRIBED IN CENTRAL AMENDMENT AND HENCE CENTRAL AMENDMENT UPHELD STRICKING STATE AMENDMENT.

GREEN BELT AREA - GRAM THANA LAND - FAQ

There is a land within 120 metres from a village. Gram Thana land can be within 200 metres from the village. Under what provision is this there?

Rural Development and Panchayat Raj Secretariat

CIRCULAR No. RDP 124 BAC 90, Bangalore, dated 19th April, 1990

Sub: Comprehensive Development Plan of Bangalore—Re-vised Green Belt—Maintenance of—Revised instructions.

1. In Government Circular No. RDC 31 MIS 84, dated 20th August, 1984, it has been directed that the Village Panchayats located within the areas in the revised 'Green Belt' around Bangalore shall not issue licenses for any constructions or any building activities beyond their present 'Gramathanas' and 200 meters from the limits of these Gramathanas.


2. It has been decided by the Government that in order to avoid hapazard growth of village limits the village panchayats should be stopped from issuing licenses for construction in areas beyond the present Gramathana limits.


3. Now therefore in exercise of powers conferred by sub-section (3) of Section 54 of the Karnataka Village Panchayat and Local Board Act, 1959 and in supersession of the instructions issued earlier the Government of Karnataka, hereby direct that all the Village Panchayts concerned within the areas coming under the revised Green Belt as shown in the annexure appended hereto shall not issue licenses for construction of any building beyond their approved Gramathana limits and to hereafter restricted the exercise of such powers by the Village Panchayts/Mandal Panchayats to the licensing of construction of building only within the respective Gramathana limits and not upto 200 meters beyond these limits.


4. Suitable instructions may be issued to all concerned. A compliance report on the action taken in this behalf should be sent to Government by the Deputy Commissioner, Bangalore (Urban) District, Bangalore immediately.

]. RAGHAVENDRACHAR.
Desk Officer,Mandai Panchayat,
R.D. & P. Raj Department.


Can this be agricultural or non-agricultural land?

Advice: The land is only kept out of green belt area, it may be agricultural or non agricultural depending upon it's permitted use by proper authorities.



Is conversion required?

Advice: Yes conversion is required through Deputy Commissioner.

Is there a restriction on acquisition of Gram Thana land?

Advice:No such restrictions is found by me.


If a sale deed is made mentioning gram thana land, on what basis is stamp duty paid; agricultural land or gram thana land?

Advice: If it comes within grama thana limit and it is agricultural land having RTC then stamp duty is on such agricultural land value fixed by department.

LAW OF INAM LANDS AND CASE LAW

KARNATAKA INAM LAND LAWS


CASE LAW ON INAM LANDS

OCCUPANCY RIGHTS CONFERRED ON TENANTS BY INAM LAW AND LRF DOES NOT ATTRACT PTCL ACT

WHETHER A TENANTED OCCUPANCY CONFERRED LAND ATTRACTS PTCL ACT - NO



UNDER MYSORE (PERSONAL AND MISCELLANEOUS) INAMS ABOLITION ACT, 1954, SECTION 5 — PERMANENT TENANTS ARE REGISTERED AS OCCUPANTS ON CERTAIN CONDITIONS. THE CONDITION DOES NOT INCLUDE ANY RESTRICTION ON ALIENATION.

1. Granted land — Definition of — Only Government land granted to person belonging to any Scheduled Caste or Scheduled Tribe, under provisions of any enactment, is to be considered as "granted land"


2. Tenanted inam land that stood vested in State Government consequent upon abolition of inams, does not become "granted land" when occupancy right in respect of land is conferred on tenant thereof, merely because tenant happened to be person belonging to Scheduled Caste or Scheduled Tribe — Vesting of tenanted inam land in State Government is not absolute but is subject to vested right of tenant to got occupancy conferred on him and conferment of occupancy right on tenant by Special Deputy Commissioner does not amount to making grant of land — Alienation of inam land by tenant after fitting occupancy right conferred on him is not hit by prohibition contained in Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978.


3. Hon,ble Justice D.V. Shylendra Kumar, Held in a case of M. Munikenchappa v The Special Deputy Commissioner, Bangalore District, Bangalore and Others, Reported in 2004(3) Kar. L.J. 579.: The land in question was the subject-matter of the- order of the Special Deputy Commissioner exercising his jurisdiction under Section 5 of the Act. An order of this nature is one passed for recognizing a pre-existing right of a person who is already in possession. The Special Deputy Commissioner virtually functions as a Tribunal for such purposes, In respect of lands for which occupancy rights are conferred such a land cannot be construed as a 'granted land' under the provisions of Section 3(l)(b) of the Act. The subject land which was also the subject-matter of the order dated 3-2-1962 passed by the Special Deputy Commissioner and in exercise of his powers under Section 5 of the Inams Abolition Act, cannot be construed as a 'granted land' within the meaning of this phrase occurring in Section 3(l)(b) of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978.






UNDER SIMILAR CIRCUMSTANCES A CASE BEFORE FULL BENCH OF HIGH COURT OF KARNATAKA WAS DECIDED BY HON’BLE JUSTICES N.K. JAIN, H. RANGAVITTALACHAR AND V.G, SABHAHIT, HAS PASSED A SIMILAR JUDGEMENT RELATED TO TENANTED LANDS. In Mohammed Jaffar and Another V State of Karnataka and Others, Reported in 2003(1) Kar. L.J. 337 (FB).


1. Tenanted land that stood vested in State Government as on 1-3-1974 under Land Reforms Act, does not become "granted land" when occupancy in respect of such land is conferred on tenant, merely because tenant happens to be person belonging to Scheduled Caste or Scheduled Tribe — Vesting of tenanted land in State Government is not absolute but is subject to vested right of tenant to get occupancy conferred on him — Conferment of occupancy right on tenant by Land Tribunal does not amount to making grant of land — Alienation of land in respect of which occupancy was conferred on erstwhile tenant, held, is not hit by prohibitions contained in Act of 1978.

2. A bare reading of Section 3(l)(b) of the PTCL Act makes it clear that the land should be granted by the Government and such land is to be granted to a person belonging to Scheduled Castes or the Scheduled Tribes under the relevant law including agrarian reforms. Once the land is held to be a granted land, the restriction contained in Section 4 regarding the apprehension of transfer of land would apply. . . . Section 44 of the KLR Act deals with vesting of the land in the Government. Therefore, the land which is not granted by the State Government cannot prima facie be hit by the provisions of the PTCL Act.

3. All the lands held by or in possession of the tenants vest with the State Government free from all encumbrances and the State Government is entitled to take possession of the said properties. However, as per Section 44(e) the Government is not entitled to take possession of the tenanted land and the permanent tenants, protected tenants and other tenants holding the land are entitled to such right or privileges and subject to such conditions provided under Act. In view of Section 44 of the KLR Act, it is clear that conferment of occupancy right by the Land Tribunal, and not by the Government, is only a declaration or pre-existing right which has been conferred on the tenant under Section 45 and vesting of the land is subject to right that is conferred on the tenant for conferment of occupancy right- Section 45 of the KLR Act gives a right to a person who is a tenant on the land to get the occupancy right conferred in his favour and Sections 48 and 48-A deals with the constitution of the Tribunals and enquiry by the Tribunal. The occupancy right will be conferred by the Land Tribunal and not by the Government under Section 48-A of the KLR Act on a tenant who was cultivating the land personally on 1-3-1974. Therefore, what is conferred on the tenant who was personally cultivating the land on 1-3-1974 is the declaration of his occupancy right of land on 1-3-1974, by the Tribunal. The preamble to the KLR Act clearly shows that the Act is enacted to confer ownership on the tenants and wherefore, it is clear that the conferment of occupancy right on the tenant who was personally cultivating the land on 1-3-1974 is conferment of ownership on the tenant as per the preamble to the Act and the same is subject to certain restrictions which are imposed in the certificate of registration issued under Section 55 of the Act in Form 10.

4. Conferment of occupancy right is only declaration of the fact that the tenant who was personally cultivating the land on 1-3-1974 and the land which has vested with the Government, the tenant js declared as the occupant of the said land subject to the restrictions contained in the certificate of registration and if the tenant proves that he has been personally cultivating the land on 1-3-1974 he cannot be denied conferment of occupancy right. .... Under the circumstances, it is clear that occupancy right cannot at all fall within the ambit of 'granted land' as defined under the PTCL Act. The vesting of land in the Government is subject to vested right of a tenant to get occupancy right and for determination of right and conferment of occupancy by Land Tribunal, a Statutory Authority established under the Land Reforms Act, is the Competent Authority to determine the same on a tenant who was personally cultivating the land on 1-3-1974.

5. In view of this, the occupancy right, which has been granted by the Land Tribunal, cannot be construed as "granted land" as defined under the PTCL Act. The land in respect of which the occupancy right has conferred under Section 48-A of the KLR Act would not fall within the ambit of 'granted land' as defined under Section 3(1 }(b) of the PTCL Act.

TIPS TO FRAME LEASE / RENTAL DEEDS

TIPS TO FRAME LEASE OR RENTAL AGREEMENT.


NAMES OF ALL TENANTS


Every adult who lives in the rental unit, including both members of a married or unmarried couple, should be named as tenants and sign the lease or rental agreement. This makes each tenant legally responsible for all terms, including for the full amount of the rent and the proper use of the property. This means that you can legally seek the entire rent from any one of the tenants should the others skip out or be unable to pay; and if one tenant violates an important term of the tenancy, you can terminate the tenancy for all tenants on that lease or rental agreement.



LIMITS ON OCCUPANCY


Your agreement should clearly specify that the rental unit is the residence of only the tenants who have signed the lease and their minor children. This guarantees your right to determine who lives in your property -- ideally, people whom you have screened and approved -- and to limit the number of occupants. The value of this clause is that it gives you grounds to evict a tenant who moves in a friend or relative, or sublets the unit, without your permission.



TERM OF THE TENANCY


Every rental document should state whether it is a rental agreement or a fixed-term lease. Rental agreements usually run from month-to-month and self-renew unless terminated by the landlord or tenant. Leases, on the other hand, typically last for certain years. Your choice will depend on how long you want the tenant to stay and how much flexibility you want in your arrangement.



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DNA - FINGER PRINT EXPERTS TO PROVE DEEDS AND PARENTAGE

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MEANING OF TERMS USED IN KARNATAKA LAND RECORDS

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HOW A NON-AGRICULTURIST/COMPANY CAN BUY AGRICULTURAL LAND PROCEDURE AND LAW INVOLVED IN IT IN KARNATAKA

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HOW A NON-AGRICULTURIST/COMPANY CAN BUY AGRICULTURAL LAND PROCEDURE AND LAW INVOLVED IN IT IN KARNATAKA


COLLECTIONS OF SRIDHARA BABU N - +91-9880339764



KARNATAKA LAND REVENUE ACT



RESTRICTIONS ON HOLDING OR TRANSFER OF AGRICULTURAL LANDS

79A. Acquisition of land by certain persons prohibited.—

(1) On and from the commencement of the the Karnataka Land Reforms (Amendment) Act, 1995, no person who or a family or a joint family which has an assured annual income of not less than rupees two lakhs from sources other than agricultural lands shall be entitled to acquire any land whether as land owner, landlord, tenant or mortgagee with possession or otherwise or partly in one capacity and partly in another.

(2) For purposes of sub-section (1)—

(i) the aggregate income of all the members of a family or a joint family from sources other than agricultural land shall be deemed to be income of the family or joint family, as the case may be, from such sources;

(ii) a person or a family or a joint family shall be deemed to have an assured annual income of not less than rupees two lakhs from sources other than agricultural land on any day if such person or family or joint family had an average annual income of not less than rupees two lakhs from such sources during a period of five consecutive years preceding such day.

Explanation.—A person who or a family or a joint family which has been assessed to income tax under the Income Tax Act, 1961 (Central Act 43 of 1961) on an yearly total income of not less than rupees two lakhs for five consecutive years shall be deemed to have an average annual income of not less than rupees two lakhs from sources other than agricultural lands.



(3) Every acquisition of land otherwise than by way of inheritance or bequest in contravention of this section shall be null and void.

(4) Where a person acquires land in contravention of sub-section (1) or acquires it by bequest or inheritence he shall, within ninety days from the date of acquisition, furnish to the Tahsildar having jurisdiction over the Taluk where the land acquired or the greater part of it is situated a declaration containing the following particulars, namely:—

(i) particulars of all lands;

(ii) the average annual income of himself or the family;

(iii) such other particulars as may be prescribed.

(5) The Tahsildar shall, on receipt of the declaration under sub-section (4) and after such enquiry as may be prescribed send a statement containing the prescribed particulars relating to such land to the Deputy



Commissioner who shall, by notification, declare that with effect from such date as may be specified in the notification, such land shall stand transferred to and vest in the State Government without further assurance free from all encumbrances. From the date specified in such notification the Deputy Commissioner may take possession of such land in such manner as may be prescribed.

(6) For the land vesting in the State Government under sub-section (5), where the acquisition of the land was by bequest or inheritance, an amount as specified in section 72 shall be paid and where the acquisition was otherwise than by bequest or inheritance, no amount shall be paid.



79B. Prohibition of holding agricultural land by certain persons.—(1) With effect on and from the date of commencement of the Amendment Act, except as otherwise provided in this Act,—

(a) no person other than a person cultivating land personally shall be entitled to hold land; and

(b) it shall not be lawful for,-

(i) an educational, religious or charitable institution or society or trust, other than an institution or society or trust referred to in sub-section (7) of section 63, capable of holding property;

(ii) a company;

(iii) an association or other body of individuals not being a joint family, whether incorporated or not; or

(iv) a co-operative society other than a co-operative farm,

to hold any land.

(2) Every such institution, society, trust, company, association, body or co-operative society,—

(a) which holds lands on the date of commencement of the Amendment Act and which is disentitled to hold lands under sub-section (1), shall, within ninety days from the said date, furnish to the Tahsildar within whose jurisdiction the greater part of such land is situated a declaration containing the particulars of such land and such other particulars as may prescribed; and

(b) which acquires such land after the said date shall also furnish a similar declaration within the prescribed period.



(3) The Tahsildar shall, on receipt of the declaration under sub-section (2) and after such enquiry as may be prescribed, send a statement containing the prescribed particulars relating to such land to the Deputy Commissioner who shall, by notification, declare that such land shall vest in the State Government free from all encumbrances and take possession thereof in the prescribed manner.

(4) In respect of the land vesting in the State Government under this section an amount as specified in section 72 shall be paid.

Explanation.—For purposes of this section it shall be presumed that a land is held by an institution, trust, company, association or body where it is held by an individual on its behalf.





79C. Penalty for failure to furnish declaration.—(1) Where a person fails to furnish the declaration under section 79A or section 79B or furnishes a declaration knowing or having reason to believe it to be false, the Tahsildar shall issue a notice in the prescribed form to such person to show cause within fifteen days from the date of service thereof why the penalty specified in the notice, which may extend to five hundred rupees, may not be imposed upon such person.

(2) If the Tahsildar on considering the reply, if any, filed is satisfied that the person had failed to furnish the declaration without reasonable cause or had filed it, knowing or having reason to believe it to be false, he may, by order, impose the penalty and also require such person to furnish within a period of one month from the date of the order a true and correct declaration complete in all particulars.

(3) If the person fails to comply with such order, his right, title and interest in the land concerned shall, as penalty, be forfeited to and vest in the State Government.







80. Transfers to non-agriculturists barred.—(1) (a) No sale (including sales in execution of a decree of a civil court or for recovery of arrears of land revenue or for sums recoverable as arrears of land revenue), gift or exchange or lease of any land or interest therein, or

(b) no mortgage of any land or interest therein, in which the possession of the mortgaged property is delivered to the mortgagee, shall be 2[lawful]2 in favour of a person,—

(i) who is not an agriculturist, or



(ii) who being an agriculturist holds as owner or tenant or partly as owner and partly as tenant land which exceeds the limits specified in section 63 or 64; or

(iii) who is not an agricultural labourer; or

(iv) who is disentitled under section 79A or section 79B to acquire or hold any land:]3

Provided that the Assistant Commissioner having jurisdiction over the area or any officer not below the rank of an Assistant Commissioner authorised by the State Government in this behalf in respect of any area may grant permission for such sale, gift, or exchange, 3[to enable a person other than a person disentitled to acquire or hold land under section 79A or section 79B]3 who bona fide intend taking up agriculture to acquire land on such conditions as may be prescribed in addition to the following conditions, namely:—

(i) that the transferee takes up agriculture within one year from the date of acquisition of land, and

(ii) that if the transferee gives up agriculture within five years, the land shall vest in the State Government subject to payment to him of an amount equal to eight times the net annual income of the land or where the land has been purchased, the price paid for the land, if such price is less than eight times the net annual income of the land.



(2) Nothing in sub-section (1) shall apply to lands granted under section 77.







81. Sections 79A, 79B, and 80 not to apply in certain cases.—(1) Nothing in section 79A or section 79B or section 80 shall apply to,—

(a) the sale, gift or mortgage of any land or interest therein in favour of the Government: 2[the Karnataka State Road Transport Corporation constituted under the Road Transport Corporation Act, 1950 (Central Act LXIV of 1950), the Karnataka Power Transmission Corporation Limited constituted under the Companies Act, 1956]2 3[the Karnataka Housing Board constituted under the Karnataka Housing Board Act, 1962 (Karnataka Act 10 of 1963), the Industrial Areas Development Board constituted under the Karnataka Industrial Areas Development Act, 1966 (Karnataka Act, 18 of 1966), the Karnataka Slum Clearance Board established under the Karnataka Slum Areas (Improvement and Clearance) Act, 1973, (Karnataka Act 33 of 1974) the Bangalore Development Authority constituted under the Bangalore Development Authority Act, 1976 (Karnataka Act 12 of 1976), a Nagarabhivruddhi Pradhikara constituted under the Karnataka Nagarabhivruddhi Pradhikaragala Adhiniyama, 1987 (Karnataka Act 34 of 1987).]3

(b) the mortgage of any land or interest therein in favour of,—

(i) a co-operative society;

(ii) a financial institution;



(vi) any company as defined in section 3 of the Companies Act, 1956 (Central Act 1 of 1956) in which not less than fifty-one per cent of the paid up share capital is held by the State Government or the Central Government or both;

(vii) any corporation, not being a company as defined in section 3 of the Companies Act, 1956 (Central Act 1 of 1956) established or constituted by the State Government [or the Central Government or both];

(viii) the Coffee Board constituted under the Coffee Act, 1942 (Central Act 7 of 1942),

as security for any loan or other facility given by such society, bank, company, corporation or Board for agricultural purposes.

Explanation.—In this clause ‘agricultural purposes’ include making land fit for cultivation, cultivation of land, improvement of land, development of sources of irrigation, raising and harvesting of crops, horticulture, forestry, planting and farming, cattle breeding, animal husbandry, dairy farming, seed farming, pisciculture, apiculture, sericulture, piggery, poultry farming and such other activities as are generally carried on by agriculturists, dairy farmers, cattle breeders, poultry farmers and other categories of persons engaged in similar activities including marketing of agricultural products, their storage and transport and the acquisition of implements and machinery, in connection with any such activity;



(c) the sale of any land or interest therein referred to in clause (b) in enforcement of the said security;

(d) the sale of any land in favour of a sugar factory for purposes of research of seed farm or sale in favour of the Coffee Board constituted under the Coffee Act, 1942 (Central Act 7 of 1942).



(2) The institutions referred to in clause (b) of sub-section (1) acquiring land or interest therein shall dispose of the same by sale, within the prescribed period:

Provided that pending such sale the land may be leased for a period not exceeding one year at a time and the lease shall stand determined when the land is sold or on the expiry of one year, whichever is earlier and notwithstanding anything to the contrary in this Act or in any other law for the time being in force the lessee shall not be entitled to any right other than as such lessee in the land.

(3) Any sale by the institution under this section shall be subject to the other provisions of this Act.]1



81A. Declaration to be made before the registering authority in certain cases.—(1) No document relating to any transfer of land either by sale, gift, exchange, lease, 2[mortgage with possession surrender, agreement, settlement, or otherwise, shall be registered unless a declaration in writing is made in duplicate in such form as may be prescribed and filed by the transferee before the registering authority under the Indian Registration Act, 1908 (Central Act XVI of 1908), as to the total extent of land held by him as also his assured annual income.



(2) The registering authority referred to in sub-section (1) shall forward within such time and in such manner as may be prescribed, one copy of the declaration referred to in sub-section (1), to the prescribed officer, within





whose jurisdiction the land which is the subject matter of the transfer or the major part thereof is situated.

(3) On receipt of the copy of the declaration under sub-section (2), the prescribed officer may obtain such information as may be necessary and take such action as he deems fit in accordance with the provisions of this Act, and in accordance with such rules as may be made in this behalf.



82. Reporting of illegal transactions.—Every village officer and every officer of the Revenue, Registration and Land Records Departments shall report to the 1[x x x]1 prescribed authority, 2[x x x]2, every transaction in respect of any land in contravention of any of the provisions of this Act, 3[as they stood before and as they stand after the date of commencement of the Amendment Act]3 which comes to the notice of such officer.



83. Inquiry regarding illegal transactions.—The prescribed authority shall, after a summary inquiry, determine whether the transaction reported to it under section 82 or coming to its notice in any other manner is in contravention of 1[or is unlawful or invalid under]1 the provisions of this Act, 2[as they stood before or as they stand after the date of commencement of the Amendment Act]2 and make a declaration accordingly. Any transaction so declared to be in contravention of 1[or is unlawful or invalid under]1 any of the provisions of this Act, 2[as they stood before or as they stand after the date of commencement of the Amendment Act]2 shall be null and void. 2[The land in respect of which such transaction has taken place shall, as penalty, be forfeited to and vest in the State Government 3[free from all encumbrances]3. No amount is payable therefor



72. Amount payable for lands surrendered to and vesting in the State Government.—(1) Save as otherwise provided in this Act, the amount payable in respect of land to be taken over by the State Government under sections 68, 70, 71, 79A and 79B shall be determined with reference to the net annual income derivable from the land in accordance with the following scale, namely:—

(i) for the first sum of rupees five thousand or any portion thereof of the net annual income from the land, fifteen times such sum or portion;

(ii) for the next sum of rupees five thousand or any portion thereof of the net annual income from the land, twelve times such sum or portion;

(iii) for the balance of the net annual income from the land, ten times such balance:

Provided that where the land taken over by the State Government is D Class land referred to in Part A of Schedule I, an amount equal to twenty times the net annual income thereof shall be payable.

(2) For the purpose of sub-section (1), the net annual income from the land shall be deemed to be the amount payable as annual rent in respect of the land as specified in section 8. But where in a land assessed as wet land or dry land, the owner has raised fruit bearing trees, the net annual income of such land for purposes of sub-section (1) shall be determined on the basis of assessment for garden land which could have been levied having regard to the nature of the fruit bearing trees.



(3) The amount under sub-section (1) shall be payable as follows:—

(a) to the tenant, if any, in possession of the land, an amount equal to one year’s net annual income;

(b) to the owner, the balance.

(4) Where there are wells or other structures of a permanent nature on the land, constructed by the owner then, the value thereof calculated in the prescribed manner shall also be payable.

(5) Notwithstanding anything in sub-sections (1) and (4), the aggregate amount payable according to the said sub-sections shall not exceed rupees two lakhs.

2[(6) x x x]1



109. Certain lands to be exempt from certain provisions.—(1) Subject to such rules as may be prescribed and the provisions of the Karnataka Town and Country Planning Act, 1961 (Karnataka Act 11 of 1963), the State Government may, by notification, exempt, any land in any area from the provisions of sections 63, 79A, 79B or 80 to be used for,—

(i) industrial development, the extent of which shall not exceed twenty units;

(ii) educational institutions recognised by the State or Central Government to be used for non-agricultural purpose the extent of which shall not exceed four units;

(iii) places of worship to be specified by Government by notification which are established or constructed by a recognised or registered body for non-agricultural purpose, the extent of which shall not exceed one unit;

(iv) a housing project, approved by the State Government the extent of which shall not exceed ten units;

(v) the purpose of horticulture including floriculture and agro based industries the extent of which shall not exceed twenty units:

Provided that the Deputy Commissioner may also exercise the powers of the State Government under this sub-section, subject to the restrictions and in the manner specified therein, in respect of the land to be used for,-

(i) industrial development, the extent of which shall not exceed ten units;

(ii) educational institutions recognised by the State or Central Government to be used for non-agricultural purpose the extent of which shall not exceed two units;

(iii) places of worship to be specified by Government by notification which are established or constructed by a recognised or a registered body for non-agricultural purpose, the extent of which shall not exceed one fourth of a unit;

(iv) a housing project, approved by the State Government the extent of which shall not exceed ten units;



(v) the purpose of horticulture including floriculture and agro based industries the extent of which shall not exceed ten units.

(1A) Notwithstanding anything contained in sub-section (1), the State Government may in public interest and for reasons to be recorded in writing, by notification and subject to the provisions of the Karnataka Town and Country Planning Act, 1961 (Karnataka Act 11 of 1963) and such restrictions and conditions as may be specified by it, exempt any extent of land from the provisions of sections 63, 79A, 79B or 80]4 for any specific purpose.

Provided that the Deputy Commissioner other than the Deputy Commissioner of Bangalore Rural District and the Deputy Commissioner of Bangalore District, may subject to the restrictions and the manner specified in this sub-section exercise the power of the State Government to grant exemptions to an extent not exceeding half hectare of land.



(2) Where any condition or restriction specified in the notification under sub-section (1), has been contravened, the State Government or as the case may be, the Deputy Commissioner may after holding an enquiry as it or he deems fit, cancel the exemption granted under that sub-section and the land in respect of which such cancellation has been made, shall, as penalty be forfeited to and vest in the State Government free from all encumbrances. No amount is payable therefor.





KARNATAKA LAND REFORMS RULES:





RULE 38-B. Conditions and Guidelines for grant of exemption under Section 109.—



(l)



(a) Exemption under Section 109, for the purpose of industrial development including tourism projects may be granted.—

(i) in case of Tiny Industry upto one quarter unit of agricultural land, on the recommendation of the District Level Single Window Agency headed by the Deputy Commissioner;

(ii) in case of Small Scale Industry, upto one unit of agricultural land, on the recommendation of District Level Single Window Agency headed by the Deputy Commissioner;

(iii) in case of Medium and Large Scale Industry having a total investment upto rupees fifty crores and requiring land upto five units, on the recommendation of the State Level Single Window Agency headed by the Principal Secretary to Government, Commerce and Industries Department;

(iv) in case of Medium and Large Scale Industry having a total investment of more than fifty crores and requiring land upto twenty units, on the recommendation of the High Level

Committee/ Land Audit Committee headed by the Minister in-charge of Large and Medium Scale Industries.



Explanation.—Tiny and Small Scale Industry, Medium and Large Scale Industry shall have the same meaning as defined in Government Order No. CI 130 SPC 96, dated 15-3-1996 or such other order as may in this behalf be issued from time to time.





(b) while making recommendations for exemption the committees specified in clause (a), shall be guided by.—

I. the zonal regulations annexed to the comprehensive development plan or outline development plan under the Karnataka Town and Country Planning Act, 1961 (Karnataka Act 11 of 1963);

II. the suitability of the land for the proposed project of the industrial unit keeping in view the locational aspect, availability of infrastructures like water, power, communication etc., and environmental and ecological aspects; and

III. the extent of land required/ keeping in view the nature and size of the proposed project, financial outlay, capacity of the enterprenuer, technical feasibility and economic viability;

(2)



(a) Exemption under Section 109, for the purpose of Educational Institutions, may be granted on the recommendation of the Deputy Commissioner within whose local limits of jurisdiction the educational institution is situate or in the case of a branch of such institution, such branch institution is situate;



(b) While making recommendation for exemption under this sub-rule, the Deputy Commissioner shall be guided by.—

(i) the zonal regulations annexed to the comprehensive development plan or the outline development plan under the Karnataka Town and Country Planning Act, 1961 (Karnataka Act 11 of 1963);

(ii) the suitability of the land for the proposed purpose;

(iii) the necessity and extent of land required keeping in view the nature and size of the institution.



Explanation.—For the purpose of this sub-rule the term "Educational Institution" shall include a Hostel or a Vocational Educational Institution.





(3)



(a) Exemption under Section 109, for the purpose of places of worship, may be made on the recommendation of the Deputy Commissioner in whose local limits of jurisdiction the place of worship is situate;



(b) While making recommendation for exemption the Deputy Commissioner shall be guided by the following, namely.—

(I) Whether the place of worship is governed by any of the following Acts, namely.—

(i) Religious Endowments Act 1863 (Central Act 20 of 1863);

(ii) The Charitable Endowments Act, 1890 (Central Act 6 of 1890);

(iii) The Coorg Temple Fund, Management Regulation, 1892 (Regulation No. 4 of 1892);

(IV) The Charitable and Religious Trust Act, 1920 (Central Act No. XIV of 1920);

(v) Karnataka Religious and Charitable Institutions Act, 1927 (Karnataka Act 7 of 1927);

(vi) The Bombay Public Trust Act, 1950 (Bombay Act 29 of 1950);

(VII) The Madras Hindu Religious and Charitable Endowment Act, 1951 (Madras Act 19 of

1951);

(VIII) The Wakf Act, 1995 (Central Act 43 of 1995);

(ix) The Hyderabad Endowment Regulation (Fasli 1349) or is registered under the Indian

Trusts Act, 1882 (Central Act 2 of 1882) or under the Karnataka Societies Registration

Act, 1960 (Karnataka Act 17 of 1960) or under any other law for the time being in

force.

(II) The zonal Regulations annexed to the Comprehensive Development Plan or Outline Development Plan under the Town and Country Planning Act, 1961 (Karnataka Act 11 of 1963).

(III) The suitability of the land for the purpose of place of worship, keeping in view the maintenance of peace and harmony. Wherever necessary the Deputy Commissioner shall also obtain a no objection certificate from the concerned local authority.





(4)



(a) Exemption under Section 109, for the purpose of a Housing Project, may be made on the recommendation of the State Level Single Window Agency constituted for this purpose;



(b) While making recommendation for exemption the Single Window Agency shall be guided by the following, namely.—

(i) Whether a no-objection certificate has been obtained by the applicant from the concerned Planning Authority or the Urban Development Authority or Local Authority, as the case may be;

(ii) The financial resources, technical feasibility, economic viability, capacity of the person seeking such exemption, and provision for public utility, playground and such other civic amenities, and availability of water and power supply etc.;

(iii) The comprehensive project report covering all the aspects;

(iv) Suitability of the project from the environmental and ecological aspects;

(v) any other relevant consideration.



(c) Exemption granted under this sub-rule shall be subject to the following conditions.—



(i) Out of the total area available for housing, as per land use classification under Outline Development Plan or Comprehensive Development Plan, published under the Karnataka Town and Country Planning Act, 1961 (Karnataka Act 11 of 1963) or classified by or under any other law providing for regulation of housing activity, thirty per cent of the land shall be earmarked for Low Income Group Housing and twenty per cent for Middle Income Group Housing:

Provided that in the case of a housing project on a land not classified under the Outline Development Plan or Comprehensive Development Plan, the project shall be drawn up in consultation with the Director of Town Planning.

Explanation.—For the purpose of this rule 'Low Income Group Housing' and 'Middle Income Group Housing7 means norms as prescribed by the Housing and Urban Development Corporation from time to time.



(ii) The area meant for roads and parks shall be developed by the applicant in accordance with the project report and then transferred to the Urban Development Authority or the Local Authority, as the case may be;



(iii) Any other conditions as the State Government may specify.





(5)



(a) Exemption under Section 109 for the purpose of Horticulture including Flouriculture and Agro-based industry, shall be made.—



(i) In respect of a project requiring upto two units of land on the recommendation of the District Level Single Window Agency headed by the Deputy Commissioner;



(ii) In respect of a project requiring land in excess of two units but not exceeding ten units, on the recommendation of the State Level Single Window Agency headed by the Principal Secretary to Government, Agriculture and Horticulture Department;



(iii) In respect of a project requiring more than ten units on the recommendation of the High Level Committee headed by the Minister in-charge of Agriculture or the Minister in-charge of Horticulture, as the case may be.



(b) While making recommendation for exemption, the Committee specified in clause (a) above shall be guided by the following, namely.—

(i) The zonal regulations annexed to the Comprehensive Development Plan or Outline Development Plan under the Karnataka Town and Country Planning Act, 1961 (Karnataka Act 11 of 1963);

(ii) The suitability of the land for the proposed project;

(iii) the necessity and extent of land required keeping in view the nature and size of the project, financial outlay, capacity of the enterprenuer, technical feasibility and economic viability.





(c) Exemption under this sub-rule shall be granted subject to the following conditions, namely.—

(I) Total area to be used for non-agricultural purpose like office, cold storage, processing, factory building and staff quarters shall not exceed two units.

(II) The land shall be utilised for.—

(i) growing flowers; or

(ii) demonstration, nursery, research and development activities pertaining to

cultivation of new varieties, stabilisation of process of utilization of agricultural

products etc.; or

(iii) establishment of tissue culture laboratory, genetic engineering facilities etc.; or

(iv) any other purpose which would promote the growth of agro-based industries as

may be specified by the Department of Commerce and industries in

consultation with the Department of Agriculture and Horticulture, as the case

may be.

(III) The land shall not be used for growing any agriculture or horticulture based raw-materials.





RULE38-C Conditions and guidelines of exemption under sub-section (1-A) of Section 109.—





(1) Grant of exemption under sub-section (1-A) of Section 109 shall, depending on the purpose for which the exemption is granted, be in conformity with Rule 38-B, so far as they are not inconsistent with the general provisions of these rules.



(2) All exemptions under these rules shall be granted subject to clearance by the High Power Committee headed by the Chief Secretary constituted under Government Order No. CI 88 SPF 95, dated 4-11-1995 or such other orders made in this behalf from time to time.



(3) The High Power Committee while giving clearance to the project under this rule shall ensure, depending on the purpose for which exemption is sought, that the general conditions laid down under Rule 38-D are also satisfied.









RULE38-D. Application for grant of exemption.—





(1) Every application for exemption under Section 109 shall be made in Form 15-A along with a Court fee of rupees five to the concerned Deputy Commissioner.





(2) Immediately on receipt of the application the Deputy Commissioner shall cause it to be entered in a separate register maintained for each of the category depending on the extent of land sought to be exempted and the purpose for which exemption is sought. [He shall scrutinize the application in Form 15-A and the documents received from the applicant and fill up Form 15-AA] and after following the procedure specified in Rule 38-B, forward the application to the Government.





(3)

(a) The Deputy Commissioner shall after due verification of the application, in all cases, where he is not the recommending authority, transfer the same to the concerned recommending authority which shall along with its recommendation forward it to the Government.



(b) in the case of institution governed under sub-rule (3) of Rule 38-B, the Deputy Commissioner shall send the proposal through the Endowment Commissioner, who shall forward the same to the Government with his views.



(c) in the case of institutions governed under the Wakf Act, 1995, (Central Act 43 of 1995), the Deputy Commissioner shall consult the District Wakf Committee before sending the proposal to the Government.





(4) The exemption of land under these rules shall be subject to the following conditions, namely.—



(i) land shall be utilised for the purpose for which it is exemptee within two years from the date of issue of the Notification exempting the land and the exempted shall immediately after the expiry of two years from such date intimate in writing to the Government/ through the Deputy Commissioner concerned regarding the utilisation of the land for the purpose for which it was exempted. The Deputy Commissioner shall cause verification of the same by an Officer not below the rank of the Tahsildar within three months from the date of receipt of such intimation and shall record such verification in a separate register maintained for the purpose:

[Provided that where the Government is satisfied that for reasons beyond the control of the exemptee, the land is not utilised for the purpose for which the exemption was made, within two years from the date of issue of the notification exempting the said land, it may extend the time-limit further upto two years.]



(ii) The land shall not be appropriated for any purpose other than the purpose for which it is exempted:

Provided that it shall be lawful for the exemptee to obtain loan on the security of the land by creating a mortgage or other charge over his interest in the land, in favour of the Government or any Schedule Bank or a Co-operative Agricultural and Rural Development Bank or a Government company as defined in Section 3 of the Companies Act, 1956 in which not less than 51 per cent of the paid up share capital is held by the State Government or a Corporation owned or controlled by the Central Government or the State Government or both.



(iii) Where the land is exempted for a non-agricultural purpose such land shall be got converted for non-agricultural use under the provisions of the Karnataka Land Revenue Act, 1964.



(iv) Necessary permission shall be obtained from the concerned, if the exempted land falls under the Comprehensive Development Plan or Outline : . Development Plan.



(v) Any other condition as the State Government may by notification specify.















FORM 15-A
[See Rule 38-D]

Application for claiming/granting exemption under Section 109 of the Karnataka Land Reforms Act, 1961 (To be filled in by the Applicant/Institution).



1
Name of the Applicant/Institution with detailed address (in Block letters)


2
Purpose for which exemption is sought.


3
Date of Registration of the firm/institutions under the Indian Companies Act, Societies Registration Act or any Other law. (Copy of the Registration Document to be enclosed along with the Memorandum of Articles of Association) In case of Co-operative Housing Society, list of members to be enclosed).


4
(a) Registration Certificate issued by the Department of Industries and Commerce for having registered as an industry (copy to be enclosed)

(b) In case of Educational Institutions recognition letter/order issued by State/Central Government.

(c) Place of workship Notification issued by Government as detailed in Rule (3)(iii).

(d) Audit Report of the previous year of the Company.

(e) Deputy Registrar of Co/operative Societies Report.


5
(a) Agreement copy entered between the land owner and the applicant.

(b) enclose certified copies of RRs and Mutations issued by the Revenue Authorities.

(c) When and how the land/s has / have b een obtained by the

Seller(s). Furnish List.


6
. In such cases where seller has himself purchased the land he now proposes to sell.

(i) Whether the seller has obtained Permission from competent authority before purchasing that land.

(ii) If he is a Income Tax payee whether the Income Tax clearance certificate issued from the Income Tax Department is enclosed.

(iii) Whether any case under 79-A and B has been registered in respect of land now proposed to be sold.


7
If yes, details thereof.

(i) Whether the applicant is already having agricultural land in his/its name or in the name of any subsidiary institution/company. If so, furnish the details. Village, Taluk, Sy. No. extend category-A, B, C, D under Karnataka Land Reforms Act, In case of non-Agricultural land, the area in square meters and bifurcate utilised and non-utilised area.

(ii) Extent of land for which exemption is sought and justification thereof.


8
If income Tax payee copy of the Income Tax certificate issued from the Income Tax Department enclosed.




9
Whether the proposed land falls under Zoning regulations of the country and Town Planning Act/ 1961 (Certificate of the Concerned Planning Authority to be enclosed).




10
Source of finance for the proposed Project.




11
Copy of the Project Report.


12
Professional expertise of the applicant in the respective field.











place



date signature of the applicant institution







CASE LAW




M/S MURUDESHWARA CERAMICS LTD. & ANR v. STATE OF KARNATAKA & ORS [2001]


Section 109 of the Act confers power on the State Government to grant exemption in regard to a land in any area from the provisions of Sections 63, 79A, 79B and 80 of the Act to be used for industrial purposes, educational institutions, places of worship, a housing project or horticulture including floriculture or an agro based industry. Further, the Government has also the power even in the absence of such purposes to grant exemption in public interest. If the aspect that it is not with reference to any particular person or transaction such exemption is granted but it is with reference to a land such exemption is granted is borne in mind the interpretation and application of law becomes clear. It may be that such exemption could be granted before the acquisition of the land or thereafter when it is actually sought to be put to those particular uses, which are enumerated under Section 109 of the Act.





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REGULARISATION OF UNAUTHORISED DEVELOPMENT OR CONSTRUCTIONS RULES (KARNATAKA) 2007

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NOTE: THIS RULES IS LIKELY TO COME INTO FORCE IN NEAR FUTURE AFTER PUBLISHING IN GAZETTE.

FAQ'S ON PROPERTY LAW, NRI'S, INVESTMENTS, JV'S etc...

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COMPANY LAW LINKS

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KARNATAKA LAND REVENUE LAWS

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Frequently raised questions and legal answers regarding property

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Acquisition and Transfer of Immovable Property in India by a person resident outside India

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User-agent: Mediapartners-Google*
Disallow:

OF Master Plans and Illegalities - ALT LAW FORM

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ARTICLES AND NEWS AND COMMENTS OF AUTHORS ON KARNATAKA EVENTS

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HELP LINE LAW NEWS OF MAY 2007 - CLICK ON THE SUBJECT

SERVICE TAX ON RENT RECEIVED FROM PROPERTY LET OUT FOR COMMERCIAL USE

NO SEZ LAND TRANSFER WITHOUT FARMERS' NOD

SEE THE LOCATION OF LANDS - From WIKIPEDIA AND GOOGLE

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TO SEE MAPS INFORMATION OF INDIA CLICK HERE

SEZ PROPERTY INVESTMENTS

FOR COLLECTED INFORMATION ON
SEZ POLICY AND LAWS FOR PROPERTY INVESTMENTS

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MUSLIM LAW AROUND PROPERTIES - CLICK OVER THE SUBJECT

BRIEF TABLE OF SHARES AND SUCCESSION AMONG MUSLIMS

WHAT QURAN SAYS ABOUT INHERITANCE

WAKF PROPERTIES AND BOARD

WAKF LAW WEBSITE

RULES REGARDING PURCHASE AND SALE IN ISLAM

RULES REGARDING LOST PROPERTY IF FOUND IN ISLAM

ISLAMIC LEGAL TERMS

QURANIC RULES ON WILLS

ALL ABOUT ISLAM

INDIAN LAW GOVERNING PROPERTY PURCHASE IN INDIA.

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CASE LAW AND PROVISIONS GOVERNING PROPERTY IN KARNATAKA

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( To be updated by author from time to time)

VERIFICATION AND INVESTIGATION OF DOCUMENTS AND TITLE TO LANDS

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ENTERING LAND DEVELOPMENT AGREEMENTS

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RIGHTS AND LIABILITIES OF BUYER AND SELLER.

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RIGHTS AND LIABILITIES OF BUYER AND SELLER.

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LEGAL ASPECTS AROUND MATHA PROPERTIES

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KARNATAKA ACTS RELEVANT TO LAND DEALS

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INDIAN ACTS IN BRIEF FOR LAYMAN

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SOME INTEGRITY NEEDED IN BANK'S PANEL ADVOCACY

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CASE LAW INDEX ON EVIDENCE

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CITATION – DICTIONARY

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CASE LAW INDEX ON CIVIL PROCEDURE CODE

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