Karnataka High Court
Shri Mahadevappa vs State Of Karnataka on 7 February, 2023
Author: Krishna S Dixit
Bench: Krishna S Dixit
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WP No. 35199 of 2012
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF FEBRUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE KRISHNA S DIXIT
WRIT PETITION NO. 35199 OF 2012 (LR)
BETWEEN:
SHRI MAHADEVAPPA,
S/O LATE NANJUNDAPPA,
AGED ABOUT 68 YEARS,
R/A LALANAHALLI,
KASABA HOBLI, K R NAGAR TQ,
MYSORE DISTRICT - 571 602.
...PETITIONER
(BY SRI.P.D.SUBRAHMANYA.,ADVOCATE)
AND:
1. STATE OF KARNATAKA,
BY THE SECRETARY TO
REVENUE DEPARTMENT,
Digitally
signed by MS BUILDING, BANGALORE-01.
CHETAN B C
Location:
HIGH COURT 2. THE LAND TRIBUNAL
OF
KARNATAKA KRISHNARAJANAGAR TALUK
MYSORE DISTRICT,
BY TIS CHAIRMAN.,
3. L S SOMASHEKARAIAH,
SINCE DEAD BY LRS
3A. SMT. NEELAMMA,
W/O LATE SOMASHEKARAIAH,
AGED ABOUT 70 YEARS,
R/O LALANAHALLI, K R NAGAR TALUK,
MYSORE DISTRICT.
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WP No. 35199 of 2012
3B. LOKESH S/O LATE SOMASHEKARAIAH
HEAD MASTER, LOIN SCHOOL,
HUNSUR ROAD, K R NAGAR,
MYSORE DISTRICT.
3C. MANJUNATHA S/O LATE SOMASHEKARAIAH
SINCE DEAD REP BY HIS LRS
3C(1) SMT. L.C. REKHA,
W/O LATE L S MANJUNATH,
AGED ABOUT 44 YEARS,
3C(2) YASAHWANTHA,
S/O LATE L S MANJUNATH,
AGED ABOUT 24 YEARS,
BOTH ARE R/AT LALANAHALLI, WARD NO.15,
BASAVESHWARA BLOCK,
K.R NAGAR-571 602,
MYSURU DISTRICT.
3D. PRABHAVATHI ,
D/O LATE SOMASHEKARAIAH,
AGED ABOUT 30 YEARS,
HAGANAHALLI, PANDAVAPURA TALUK,
MANDYA DISTRICT.
3E. KOMALA W/O SIDDALINGAPPA
D/O LATE SOMASHEKARAIAH,
AGED ABOUT 28 YEARS,
MAGENAHALLI, HOLENARASIPURA TALUK,
HASSAN DISTRICT.
3F. RATHNA D/O LATE SOMASHEKARAIAH,
AGED ABOUT 25 YEARS,
R/O KATTAIAH,
HASSAN DISTRICT AND DISTRICT.
4. CHANDRASHEKARAIAH @ KALINGAIAH
S/O LATE NANJUNDAPPA
SINCE DECEASED REPRESENTED BY LRS
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WP No. 35199 of 2012
4A. SMT. RAJAMANI,
AGED ABOUT 72 YEARS,
W/O LATE CHANDRASHEKARAIAH
4B. NANDISH,
AGED ABOUT 48 YEARS,
S/O LATE CHANDRASHEKARAIAH,
4C. SATHISH,
AGED ABOUT 44 YEARS,
S/O LATE CHANDRASHEKARAIAH,
4D. MANJULA,
AGED ABOUT 42 YEARS,
4E. SARVAMANGALA,
AGED ABOUT 40 YEARS,
D/O LATE CHANDRASHEKARAIAH,
4F. VASANTH,
AGED ABOUT 38 YEARS,
D/O LATE CHANDRASHEKARAIAH,
ALL ARE R/AT DODDA LALANAHALLI VILLAGE
BASAVARAJA POST, K.R. NAGAR TALUK,
MYSORE DISTRICT.
AMENDED VIDE COURT ORDER DATED 11.03.2013,
LRS OF R-4 ARE DELETED 571 602.
5. SUNDARAMANI
D/O LATE NANJUNDAPPA,
AGED ABOUT 60 YEARS,
R/A LALANAHALLI VILLAGE,
KR NAGAR TALUK,
MYSORE DISTRICT- 571 602.
...RESPONDENTS
(BY SRI. R SRINIVASA GOWDA, AGA FOR R1 & R2;
SRI. NATARAJ BALLAL, ADVOCATE FOR R3(A) TO R3(F);
R4 IS DELETED V.C.O DATED 11.03.2013;
PETITION AGAINST R5 IS DISMISSED
FOR NON-PROSECUTION, V.C.O DATED 05.02.2014)
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WP No. 35199 of 2012
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSITUTION OF INDIA PRAYING TO ISSUE
A WRIT OF CERTIORARI & TO GRANT THE ORDER PASSED BY
THE R2 LAND TRIBUNAL DT.9.8.11 VIDE ANN-A & TO GRANT
SUCH OTHER RELIEFS.
THIS PETITION, COMING ON FOR FURTHER HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Petitioner claiming to be the LRs of the deceased tenant is knocking at the doors of Writ Court for assailing the Land Tribunal Order dated 09.08.2021 (Annexure-A) whereby their application filed under Section 48A of the Karnataka Land Reforms Act, 1961 has been rejected on the ground that there cannot be tenancy where the land is transferred by way of usufructuary mortgage.
2. After service of notice, the State and the Land Tribunal are represented by learned AGA and the landlords are represented by their Private Advocate. Learned counsel appearing for the landlords vehemently opposes the Writ Petition contending that there is a specific finding recorded by the Land Tribunal as to there being a conflict between the mortgagee and his subsequent transferee -5- WP No. 35199 of 2012 i.e., the tenant in question and therefore, claim is not bonafide. He also draws attention of the Court to the observation of the Land Tribunal whereby it was stated that, where there is usufructuary mortgage, the question of tenancy would not arise at the hands of usufructuary mortgagee. So contending, he seeks dismissal of the Petition.
3. Having heard the learned counsel for the parties and having perused the Petition papers, this Court is inclined to grant indulgence in the matter for the following reasons:
(a) On the question of whether occupancy can be granted or not, in the light of 1973 Amendment act, and Full Bench decision of this Court in LOKAYYA POOJARY vs. STATE OF KARNATAKA ILR 2012 KAR 4345 the what the Tribunal has to see is:
(i) whether the land in question is an
agricultural land;
(ii) whether the claim of occupancy is by tenant of the said land; and -6- WP No. 35199 of 2012
(iii) whether tenancy was created on or before the cut of date, i.e., 01.03.1974 The reasoning of the Land Tribunal that there is difference between mortgage and the lease, there being separate provisions under the Transfer of Property Act, 1882 covering each of them independent of the other and therefore, a mortgagee or the transferee of the mortgagee cannot be treated as a tenant, is bit difficult to countenance inasmuch as the definition of the landlord having been provided under Section 2(20) of the 1961 Act includes transferee of the usufructuary mortgagee to be a tenant.
(b) Under normal circumstances, the concept of mortgage and the lease are different, is true. However, when the dictionary clause of the statute gives a different meaning, that meaning has to be adopted. This view gains support from the decision of a Coordinate Bench of this Court in POOVAPPA BANGERA AND OTEHRS vs. THE LAND TRIBUNAL, BELTHANGADY AND OTHERS, ILR 2004 KAR 4782. This having not been rightly appreciated by the -7- WP No. 35199 of 2012 tribunal, there is a error apparent on the face of the record warranting interference of the Writ Court.
(c) There is force in the submission of the learned counsel for the Petitioner that the matter need not be remanded to the Tribunal inasmuch as, in the impugned order, this is the only substantive ground on which benefit of occupancy is founded upon and therefore, the Tribunal should be directed to grant occupancy without holding any further proceedings. He also submits that the scope of powers of the Writ Court under Article 227 is coextensive with the powers of the authority whose proceedings are put in challenge vide S.P.JAIN Vs. KALINGA TUBES LTD., AIR 1965 SC 1535, and therefore, this Court itself can grant the occupancy, regard being had to the longevity of the litigation at the hands of the Tribunal and thereafter at the hands of this Court. He adds, no useful purpose would be served by remanding the matter to the Tribunal for consideration afresh. In fact, the recent judicial trend shows that remand should be ordinarily be avoided in mattes like this.-8-
WP No. 35199 of 2012
In view of the above, this Writ Petition succeeds; a Writ of Certiorari issues quashing the impugned order; a Writ of Mandamus issues to the Tribunal to grant tenancy in favour of the Petitioner in respect of land admeasuring 30 Guntas in Sy.No.376 of Lalanahalli Village, Kasaba Hobli, Krishnarajanagar Taluka, Mysuru District.
The submission of the learned counsel for the Petitioner that he has no claim over rest of the lands is placed on record.
No costs.
Sd/-
JUDGE Bsv