KALLANGOUDA SOMANGOUDA Vs. RUDRAGOUDA

JUDGEMENT

(1.) This writ petition has come to us on a reference made by Jagannatha Shetty, J., on the ground that this writ petition raises an important question of law for determination.

(2.) The first respondent sold Sy.No.76/3B of Rayanal village, Hubli . Taluk, in the district of Dharwar to the petitioner on the 13th of June 1969. The Karnataka Prevention of Fragmentation and Consolidation of Holdings Act, 1966, came into force on the 1st of May 1969 (hereinafter referred to as 'the Karnataka Act'). By S.47 of the Karnataka, Act, the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947, (hereinafter referred to as 'the Bombay Act') was repealed, expressly providing that S.6 of Karnataka General Clauses Act, 1889, shall be applicable in respect o.f such repeal and S.24 of the said Act shall not be applicable. The first respondent made an application to the Special Deputy Commissioner, Dharwar, under S.5(1) of the Karnataka Act for a declaration that the sale of the land in favour of the petitioner is void, the said sale having .been made in contravention of the mandatory prohibition contained in sub-section (1) of S.5 of the Karnataka Act. The case put forward by the first respondent before the Special Deputy Commissioner was that though the sale has taken place after the Karnataka Act came into force, the sale is void as the land in question was deeimined as a fragment under the Bombay Act before it was repealed. The land measures an extent of 2 acres 23 guntas and it is not disputed that it was a 'fragment' as denned in S.2(4) of the Bombay Act, the same having been so determined under the provisions of the Bombay Act. The Special Deputy Commissioner, Dharwar, by his order dated 29.1.1974 (Ext.'A'), declared that the sale of the land in favour of the petitioner is void, it having been effected in contravention of S.5(1) of the Karnataka Act imposed a fine of Rs.50 and directed summary eviction of the petitioner on the ground that he is in unautnonsed posses- sion of the land. The said order was challenged by the petitioner before the Karnataka Revenue Appellate Tribunal, Bangalore, in revision, under S.37 of he Karnataka Act. The Revenue Appellate Tribunal, by its order dated 27.9.1974 (Ext.B') dismissed the revision petition and affirmed the . order of the Special Deputy Commissioner. It is the said orders of the Special Deputy Commissioner and the Tribunal that have been chalenged by the petitiorer in this writ petition.

(3.) The only question for consideration in this is as to whether the sale of the land in question effected on 13.6.1969, after the Karnataka Act came into force is void as offending S.5(1)(a) of the Karnataka Act. 'j he view taken by the Special Deputy Commissioner and the Tribunal is that the land in question is a fragment and that therefore the prohibition contained in S.5(1)(a) is attracted. The said provision provides that no person shall sell any fragment in respect of which a notice has been given under sub-section(2) of S.4, except in accordance with the provisions of clause (b). As it is nobody's case that clause(b) is applicable, we consider it unnecessary to refer to the same. The word fragment defined u/S.2(g) of the Karnataka Act, means a holding of land less in extent. than tne appropriate standard area determined under S.3 and theproviso to that section, however, provides that no holding shall te deemed to be a fragment by reason of arty diminution in i'.s area by diluvian. S.3 of the Karnataka Act provides for the determination of standard area it reads as fellows: For the purpose of this Act, standard area means the area specified in column (3) of the Schedule to this Act, in respect of the class of land specified in the corresponding entry of column (2) of the said Schedule; Provided that-