K ABDUL HAMEED Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) I have heard the learned counsels who represent the petitioners in all these four writ petitions, as also the learned government Advocate who represents the respondents. All the learned advocates have been heard on merits.

(2.) THE earlier orders passed by this court indicate that there are almost one hundred persons who are similarly situated to the petitioners and I had afforded the petitioners' learned advocate the facility of presenting a single petition on their behalf, if they so desire, for two reasons. First, because these are very poor persons. Secondly, because the cause of action is identical, but more importantly because the government authorities have passed orders against all these persons and only those who have obtained reliefs from the court would get the benefit of the court orders. The learned counsel conveyed the position to some of the remaining persons but for a variety of reasons, none of them are before this court. This order is therefore confined to the petitioners before me.

(3.) THE problem in this case raises a peculiar and interesting position in law. The occupancy rights were granted to respondents 3 and 4 in the year 1981. The present petitioners and others who were looking for small bits of land to construct houses to live in, approached respondents 3 and 4 who in turn entered into agreements, to sell with the petitioners. What is material is that all these transactions took place very shortly after 1991. Pursuant to the agreements to sell, the petitioners and others incurred expenditure in putting up houses and they have been residing in that area. Obviously, since the Karnataka Land Reforms Act, prescribes a 15 years bar the land could not have been sold during this period and that was the reason why the vendors entered into the agreement to sell. Obviously, some bright person from our own profession must have advised respondents 3 and 4 that an agreement to sell is not a sale, which is true, and that therefore, they are safe in entering into such a transaction. What was obviously overlooked was that there is a maxim in law that prescribes that 'you cannot do something indirectly if the law prohibits it being done directly'. To this extent therefore the transaction itself is vulnerable. The situation gets compounded because of the fact that the possession was handed over to the parties who entered into the agreement to sell and it is therefore very clear that the whole of the consideration must have been paid as otherwise the possession would not have been given. It is further evident from the fact that the purchasers were allowed to build on the land and to occupy the houses. I refer to all these stages because these particulars are required in order to pass a rather unusual order in the circumstances of the case and I shall set out the justification for it.