IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF JUNE, 2017 BEFORE THE HON’BLE MR.JUSTICE B.S.PATIL W.P.No.36528/2016 (LR-RES) BETWEEN 1. K.G.BETTAIAH, S/O KULLA SINGRAIAH, AGED ABOUT 75 YEARS, 2. SMT.LAKSHMI W/O LAXMANA, D/O G.K.BETTAIAH, AGED ABOUT 38 YEARS, BOTH R/AT GANJAM, SRIRANGAPATNA-571 4538. ... PETITIONERS (By Sri SRINIVAS V., ADV.) AND 1. STATE OF KARNATAKA, REP BY ITS SECRETARY, REVENUE DEPARTMENT, M.S.BUILDING, BANGALORE-560 001.
2. THE THASHILDAR, SRIRANGAPATNA TALUK, SRIRANGAPATNA -571 438. ... RESPONDENTS (By Smt.B.P.RADHA, AGA) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH TEH NON- ALIENATION CLAUSE I.E., CLAUSE NO.9 OF THE OCCUPANCY CERTIFICATE DATED 12.06.2013 I.E., ANNEX-C TO THE W.P. AND CONSEQUENTLY DIRECT R-2 TO ISSUE FRESH OCCUPANCY CERTIFICATE BY REMOVING CLAUSE NO.9 AND ETC.
THIS PETITION COMING ON FOR PRELIMINARY HEARING-B GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER 1. Petitioner is challenging the non-alienation clause - clause no.9 of the Occupancy Certificate dated 12.06.2013 issued to him in Form No.10 as per Section 55(1) of the Karnataka Land Reforms Act, 1961 (for short, ‘the Act’), certifying that tenant has been registered as occupant. This certificate is issued pursuant to the order passed by the Land Tribunal, Srirangapatna on 24.05.1988, conferring occupancy rights in favour of G.K.Bettaiah – father of petitioner no.1 herein in respect of Sy. No.734 measuring 1 acre 5 guntas situated at Srirangapatna.
2. As per clause no.9 of the occupancy certificate granted in Form No.10, a non-alienation clause restraining the petitioner from alienating the land for a period of 15 years from the date the certificate was issued under Section 55 has been incorporated. Petitioner is aggrieved by the condition imposed to the effect that he shall not alienate the land for 15 years from the date of certificate issued under Section 55.
3. It is contended by the learned Counsel for the petitioner that as per Section 61(1) of the Act, as amended by Act No.34 of 1998, 15 years non-alienation clause has to be reckoned from the date of final order passed by the Tribunal and not from the date of issuance of occupancy certificate. In this regard, he has placed reliance on the judgment of the Division Bench of this Court in SUBRAMANYA IYER VS STATE OF KARNATAKA & OTHERS – ILR 2001 KAR 1236, and another decision in the case of SANGAPPA VS STATE OF KARNATKA & OTHERS – (2002) ILR (KAR) 3603.
4. Learned Additional Government Advocate contends that the amendment substituting the words ‘15 years from the date of final order passed by the Tribunal’, for the words ‘15 years from the date the certificate under Section 55 is issued’, by Act No.34 of 1998 came into force with effect from 15.02.1999, and therefore, it cannot be retrospectively operated so as to cover occupancy rights granted in favour of the petitioner by the Tribunal vide order dated 24.05.1988 and the certificate issued on 12.06.2013.
5. Amendment by which the expression ‘15 years from the date of final order passed by the Tribunal’, has been introduced in Section 61, is by way of substitution of the words ‘15 years from the date the certificate under Section 55 is issued’. Therefore, as the amendment is by way of substitution, it will take effect retrospectively and indeed this is the law laid down in Subramanya Iyer’s case referred to supra. Therefore, the contention of the learned Additional Government Advocate cannot be accepted.
6. In the result, the clause incorporated in the occupancy certificate will have to be construed as 15 years from the date of final order passed by the Tribunal on 24.05.1988 and not from the date of issuance of the certificate on 12.06.2013. Writ petition is accordingly allowed.
Sd/- JUDGE KK