Hanuma Reddy B.G. vs Land Tribunal, Bangalore South and Others

This is an appeal from the order of Bhimiah, J., dismissing W.P. No. 1441 of 1976. The appellant was the petitioner therein and for the sake of convenience he will hereinafter be referred to as the petitioner.

The petitioner had made an application under S. 48A of the Karnataka Land Reforms Act, 1961, (hereinafter referred to as the Act) before the Land Tribunal, Bangalore South Taluk, for being registered as occupant of certain lands which were formerly Service Inam lands i.e., lands granted by way of emolument to a holder of a hereditary village office before the abolition of such offices. The Tribunal dismissed his application on two grounds. The first ground was that he was already holding lands in excess of the ceiling limit under the Act and the second ground was that he had not proved his tenancy by satisfactory oral or documentary evidence.

The petitioner had impugned in the writ petition the order of the Tribunal rejecting his application. While dismissing the writ petition, the learned single judge held that as those lands were formerly Service Inam lands, under S. 5 of the Mysore Village Offices Act, 1908, (hereinafter referred to as the Village Offices Act), lease of Service Inam lands was prohibited and that hence the petitioner could not be regarded as a lawful tenant of those lands. The learned single Judge agreed with the finding of the Tribunal that the petitioner was already in possession of lands in excess of the ceiling limit and hence could not be registered as occupant of lands claimed in his application.

In its order the Tribunal itself has stated that the question whether the petitioner was in possession of lands upto or in excess of the ceiling limit, was still under enquiry before the Tribunal. When such enquiry was still pending, the Tribunal could not have held that he was in possession of lands in excess of the ceiling limit. The Tribunal should have awaited the decision in such enquiry The learned single Judge was not justified in holding at this stage that the petitioner was in possession of lands in excess of the ceiling limit and hence was not eligible for being registered as occupant of the lands in question,

We may incidentally point out that under S. 67(1)(b) of the Act as amended by Karnataka Act 44 of 1976, the question whether a person is holding lands in excess of the celling limit, has to be determined by the Tribunal and not by the Tahsildar.

We shall now examine the correctness of the view taken by the learned single Judge that the lease of service Inam lands was not lawful under S. 5 of the Village Offices Act. That section read:

"5. The emoluments of village offices, whether such offices be or be not hereditary, shall not be liable to be transferred partitioned, or encumbered in any manner whatsoever, and it shall not be lawful for any Court to attach or sell such emoluments or any portion thereof:

Provided that in the case of lands which are not assigned as emoluments to the holder of a village office under rules framed under Section 22, nothing contained in this section shall be deemed to affect transfers, partitions or encumbrances, as between different members of a tractor''s family."

S. 4 of the Village Offices Act defined the word ''smoluments'' as including lands granted or continued in respect of, or annexed to, any village office by the State Government.

S. 5 of the Village Offices Act undoubtedly prohibited transfer of a Service Inam land. The question is whether a lease is a transfer for the purpose of that section. The word ''transfer'' has not been defined in the Village Offices Act. No doubt, Ss. 5 of the Transfer of Property Act defines the expression ''transfer of property'' as an act by which a, living person conveys property in present or in future, to one or moire other living persons or to himself and one or more other living persons. But that definition is for the purpose of the Act. It is well settled that the definition of a word occurring in one enactment, cannot be imported for interpreting the same word occurring in another enactment Under the Transfer of Property Act, a lease of a property is, no doubt, a transfer of property as defined under S. 5 of that Act. But it does not follow that for the purpose of S. 5 of the Village Offices Act, a lease is necessarily a transfer. In the absence of any definition of the word, ''transfer'' in the Village Offices Act, that word should, in our opinion, be understood according to its ordinary meaning. In ordinary usage, a sale or a gift of a property is understood as a transfer of that property. The lease of a property, been one of the ordinary modes of enjoying that property by its owner is not understood in common parlance as a transfer of that property.

We shall now advent to how a lease of a property is treated under other enactments, S. 9 of the Mysore Religious and Charitable Institutions Act, 1927 provides that no alienation or transfer by way of sale, gift or mortgage or otherwise of any Inam land granted by the Government to any Muzrai Institution for its upkeep or for the maintenance of any person rendering service in connection therewith, shall be valid unless it is authorised by the general or special orders of the Government and that no lease of a property belonging to a Muzrai Institution for a term exceeding five years shall be valid unless previously approved by the Government or by such officer as may be empowered by the Government in this behalf. Thus under that Act a lease for a period exceeding five years, is treated on the same footing as a transfer or alienation by way of sale, gift or mortgage.

S. 27 of the Urban Land (Ceiling and Regulation) Act, 1976 (Central Act No. 33 of 1976) provides, inter alia, that no person shall transfer by way of sale, mortgage, gift, lease for a period exceeding ten years, any urban or urbanised land with a building. Thus under that Act a lease exceeding ten years is treated on the same footing as transfer by way of sale, gift or mortgage.

Even if a permanent lease or a lease for a long period like 20 years can be regarded as a transfer-or alienation of a property, a lease from month to month or from year to year or for a short period like 4 or 5 years, is not ordinarily understood as a transfer or alienation of a, property.

It is a matter of common knowledge that Service Inam lands held by superior Village Officers like Shanghogues and Patels were generally leased by them and very rarely they were personally cultivating such lands. Their emoluments consisted of rents that they were getting from such lands. It could not have been the intention of S. 5 of the Village Offices Act to prohibit Patels and Shanubhogues from enjoying the lands giver; to them towards their emoluments, by leasing them to actual cultivator from year to year or for short periods like four to five years.

It is significant that S. 8 of the Mysore Village Offices Abolition Act, 1961, (hereinafter referred to as the Abolition Act) provides that if any land granted or continued in respect of, or annexed to, a village office by the State, had been lawfully leased and such lease was subsisting on the appointed date (1-2-1963), the provisions of the tenancy law for the time being in force in that area in which the land was situate, should apply to such lease and that the rights and liabilities of a person to whom such land was granted under Ss. 5, 6 or 7 and his tenant or tenants should, subject to the provisions of the said Act, be governed by the provisions of the said tenancy law. Unless lease of Service Inam lands was lawful, S. 8 would not have provided for giving protection to tenants of such lands.

However, Sri U.L. Narayana Rao, learned Counsel for respondents 2 to 5, contended that S. 8 of the Abolition Act applies only to leases which were saved by the proviso to S. 5 of the, Village Offices Act, namely, leases between members of the Hakdar''s family. We find it difficult to accept this contention because leases between the members of Hakdar''s family were very rare. As stated earlier, Patels and Shanubhogues were generally leasing Service Inam lands to actual cultivators.

It was next contended by Sri Narayana Rao that lease of Service Inam lands was prohibited only in the old Mysore area of the new State of Karnataka, under the Village Offices Act, that there was no such prohibition of lease of Service Inam lands under the Bombay Hereditary Village Offices Act and that S. 8 of the Village Offices Act applies only to leases of Service Inam lands in the Bombay area of the new State of Karnataka.

We find if difficult to accept the above contention. If the application of S. 8 of the Abolition Act is limited to the Bombay area, the Section would have expressly said so. On the other hand, S. 8 expressly refers to the provisions of the Tenancy Laws in force in different areas of the new State.

The learned Single Judge relied on Circular No. RD 390 LRM 76 dated 10-8-1976 issued by the Government of Karnataka. That Circular states that the laws governing hereditary Village Offices in different areas of the State except in the Bombay area, prohibited alienation including lease of Service Inam lands. This Circular can at best represent the opinion of the Government. The circular has no statutory force, nor can it be of any assistance in interpreting the word ''transfer'' occurring in S. 5 of the Village Offices Act.

Thus we are unable to agree with the view taken by the learned single Judge that S. 5 of the Village Offices Act, prohibited lease of Service Inam lands even when such lease was neither permanent nor for a long period.

The Tribunal has not examined whether the lease on the basis of which the petitioner claimed grant of occupancy rights in erstwhile Service Inam lands, was a permanent lease or a lease for a long period. This point has to be examined by the Tribunal. The Tribunal has merely stated that the petitioner had not proved his tenancy by satisfactory documentary evidence or oral evidence. The Tribunal has not stated what such documentary and oral evidence were and the evidentiary value thereof. Hence, the order of the Tribunal is clearly unsustainable.

In the result, we allow this appeal, reverse the order of the learned single Judge, allow the writ petition and quash the order of the Tribunal dated 9-1-1976. The case will now go back to the Tribunal which should dispose of afresh the petitioner''s application under S. 48A of the, Act according to law and in the light of our observations herein, after giving opportunity to the parties to adduce further evidence.

In this appeal, parties will bear their own costs.

Sri Annadanayya Puranik, learned Government Advocate, is permitted to file his memo of appearance within four weeks from today.

[1979](1)kar.l.j. 269

Karnataka Stamp Act (34 of 1957), Sch., Entry 41 (c) & (e) - Irrevocable Power of attorney in favour of bank for loan - Stamp.

Petitioner applied to a Bank for loan against security of property and was required by the bank to execute an irrevocable power of attorney in favour of the bank.

Held the irrevocable power of attorney was executed for consideration of the grant of loan and it fell under Entry 41(e) of the Sch. to the Act.