Karnataka High Court
Shaik Nadeem S/O Shadulla Saheb vs State Of Karnataka on 21 February, 2013
Author: N.Kumar
Bench: N.Kumar
- 1-
IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH
AT GULBARGA
DATED THIS THE 21ST DAY OF FEBRUARY, 2013
BEFORE
THE HON'BLE MR.JUSTICE N.KUMAR
WRIT PETITION NO.759 OF 2003 (LR)
C/W
WRIT PETITION NO.46089 OF 2002 (LR)
IN WRIT PETITION No.759/2003
BETWEEN:
Smt.Ahmedi Begum
W/o Mohamed Bahavuddin Ahmed
Age: 80 years
Sy.No.53, Vakaligere
Gulbarga
Rep. by her Power of Attorney Holder
Shri. Naukath Pasha Hassan
S/o Mohamed Bahavuddin ...Petitioner
(By Sri A Vijayakumar, Advocate)
AND:
1. State of Karnataka
Rep. by its Chief Secretary
Govt. of Karnataka
Vidhan Soudha, Bangalore
Bangalore City
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2. The Land Tribunal Gulbarga
Rep by Secretary
The Tahsildar
Gulbarga
3. Sajjada Nashin
Mohammed Mohammed-ul-Husseni
Khaja Banda Nawaz Darga
Roza (b), Gulbarga
Since deceased
Rep. by legal representative
3(a) Syed Shah Khusro Hussaini
S/o Late Dr.Syed Shah Husseni
Age: 58 years, occ: Sajjada Nasheen & Mutuwalli
of Darga Hazarat Khaja Banda Nawaj (RA)
At. Badi Dewdi, Roza (B) Gulbarga
4. Shree Gulam Dastageri
S/o Meer Bahadur Mohiuddin
Rep by legal heirs
Smt.Shahnanafis w/o Anwarul Hak
Gulbarga
LRs of Respondent No.4
4(a) Anwar Ul Haq S/o Noor Ul Islam
Age: 60 years, Occ: Business
R/o H.No.1-862 Noor Ul Islam Compound
MSK Mill Road, Gulbarga
4(b) Dr.Heena Azam D/o Anwarul Haq
W/o Azam Mahmood, Age: 39 years
Occ: Medical Practitioner
R/o H.No.1-862 Noor Ul Islam Compound
MSK Mill Road, Gulbarga
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4(c) Dr.Lubna D/o Anwarul Haq
W/o Khaja Khaleel Anwar
Age: 37 years, Occ: Medical Practitioner
R/o H.No.1-862 Noor Ul Islam
Compound, MSK Mill Road
Gulbarga
4(d) Najm Ul Islam @ Ahmer
S/o Anwarul Haq, Age: 33 years
Occ: Business, R/o H.No.1-862
Noor Ul Islam Compound
MSK Mill Road, Gulbarga
4(e) Moin Ul Islam @ Samar
S/o Anwarul Haq, Age: 29 years
Occ: Business, H.No.1-862
Noor UL Islam compound
MSK Mill Road, Gulbarga
5. Sheik Nadeem
S/o Shadullah
R/o Roza (b) Gulbarga
LRs of Respondent No.5
5(a) Goribee w/o late Sheik Nadeem
Age: 65 years, Occ: Household
R/o H.No.5-394 Behind
Darga Peer Beeshar Roza (B)
Gulbarga
5(b) Shaik Rasheed S/o late Sheik Nadeem
Age: 45 years, Occ: Gul Faroosh
R/o H.No.5-394, Behind
Darga Peer Beeshar Roza (B)
Gulbarga
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5(c) Maimoona Begum W/o Nazeer
D/o late Sheik Nadeem
Age: 43 years, Occ: Household
R/o Khaja Colony, Roza (B)
Gulbarga
5(d) Salma Begum W/o Khaja Miyan
D/o late Sheik Nadeem, Age: 40 years
Occ:Household
C/o R/o H.No5-394 Behind
Darga Peer Beeshar Roza(B)
Gulbarga
5(e) Shahnaz Begum W/o Baba Miyan
D/o late Sheik Nadeem
Age: 38 years, Occ: Household
C/o R/o H.No.5-394, Behind
Darga Peer Beeshar Roza (B)
Gulbarga
5(f) Shaheen Begum W/o Babu Miyan Advocate
D/o lage Sheik Nadeem, Age: 36 years,
Occ: Household, R/o Islambad Colony
Roza (B), Gulbarga
5(g) Gousiya Begum (divorcee) D/o Late Sheik Nadeem
Age: 34 years, Occ: Household
R/o H.No.5-394 Behind
Darga Peer Beeshar Roza (B)
Gulbarga
5(h) Shaik Naseer S/o late Sheik Nadeem
Age: 30 years, Occ: Service in Saudi Arbia
R/o H.No.5-394 behind
Darga Peer Beeshar Roza (B)
Gulbarga ...Respondents
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[By Sri Shivakumar Tengli, AGA for R1 & 2
Sri Navadgi, Adv for R3
Sri S R Krishnakumar, Adv for
M/s Lawyers for R4
Sri Vinayak Apte, Adv for LR's R5 (a-h)]
This Writ Petition is filed under Articles 226 and 227
of the Constitution of India praying to quash vide Ann-A
DT.29.11.2002 by R2 as Illegal. Direct the respondent to
grant occupancy rights in respect of dwelling house and
surrounding areas, under section 7(3) of Karnataka Certain
Inams Abolition Act, 1977 as claimed by the petitioner.
IN WRIT PETITION No.46089/2002
BETWEEN:
Shaik Nadeem
S/o Shadulla Saheb
Since deceased by L.Rs.,
1. Goribee
W/o late Shaik Nadeem
Age 70 years
Occ: Household and agri
2. Shaik Abdul Rasheed
S/o late Shaik Nadeem
Age 45 years
Occ: Agri
3. Maimuna Begum
W/o Md Nazeer Hussain
Age 43 years
Occ: Household
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4. Saleema Begum
W/o Mohd Khaja
Age 41 years
Occ: Household
5. Shahanaz Begum
W/o Syed Ismail
Age 39 years
Occ: Household
6. Shaheen Begum
W/o Babumiyan
Age 37 years
Occ: Household
7. Gousia Begum
D/o late Shaik Nadeem
Age 35 years
Occ: Household
8. Shaik Nazir
S/o late Shaik Nadeedm
Age 33years
Occ: Agri
All R/o H.No.5-395
Kala Huda, Roza (B)
Gulbarga ...PETITIONERS
(By Sri Vinayak Apte and Sri Sudheer Kulkarni
Advocate)
AND:
1. State of Karnataka
By its Secretary to Government
of Karnataka
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Revenue Department
Vidhana Soudha
Bangalore - 560 001
2. Land Tribunal
Gulbarga Taluk
Gulbarga
By its Secretary
3. Syed Gulam Dastagir
Since deceased by L.R.,
Smt. Shahana Nafeez
W/o Anwar-ul-Haq
Since deceased by L.Rs.,
3(a) Anwar-ul-Haq
S/o Noor-Ul-Islam
Age 66 years
Occ: Business
3(b) Heena
D/o Anwar-ul-Haq
Age 40 years
Occ: Business
3(c) Lubuna
D/o Anwar-ul-Haq
Age 37 years
Occ: Business
3(d) Najmul Islam
S/o Anwar-ul-Haq
Age 35 years
Occ: Business
3(e) Moin-ul-Islam
@ Mahe-ul-Islam
S/o Anwar-ul-Haq
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Age 22 years
Occ: Business
(Respondent Nos.3(a) to 3(e) are all
Resident of Noor-Ul-Islam Compound
MSK Mill Road
Gulbarga - 585 121
4. Sajjada Nashin Dargaha Shariff
Since deceased by LR
Syed Shaha Khusro Hussaini
S/o Syed Shaha Mohd.
Mohamadul Hussaini
Age 60 years
Occ: Sajjada Nasheen
Dargah Hajrat Khaja Banda Nawaz
Roza(B), Gulbarga
5. The Wakf Board
By its Secretary
CunnminghamRoad
Bangalore ...RESPONDENTS
[By Sri Shivakumar Tangli, AGA for R1 and R2;
Sri S. R. Krishna Kumar, Advocate for
M/s. Lawyer Inc for R3;
Sri A M Nagral, Advocate for R3(d) and (e);
Sri S. R. Malagatti, Advocate for R4(a);
Sri Prabhuling K. Navadgi, Advocate for R3(a)-(c) & R5)]
This Writ Petition is filed under Articles 226 and 227
of the Constitution of India praying to quash the order of the
second respondent dated 26-11-2002, passed in
LRA/TNC/51/78-79 and LRA/TNC/45/78-79, as per
Annexure-E.
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These writ petitions coming on for preliminary hearing
in 'B' Group, this day, the Court made the following:
ORDER
Writ Petition No.759/2003 and Writ Petition No.46089/2002 are filed by the rival claimants challenging the order passed by the Land Reforms Tribunal, which has granted occupancy rights in respect of the land in question in favour of the contesting respondents and excluding the buildings, which are there on the land in question.
2. For the purposes of convenience, the parties are referred to as they are referred to in the Land Reforms Tribunal.
3. The subject matter of this proceedingS is land bearing Sy.No.53 measuring 11 acres 15 guntas of village Vakkalgera, Gulbarga Taluka, Gulbarga District. The land in question was a service Inam land attached to Hazrat Khaja Banda Nawaj Darga Gulbarga. Gulam Dastageer filed Form No.1 seeking grant of occupancy rights in respect of
- 10- the said land. His case is that the said land has been leased permanently to Smt.Afsarjahan Begum by way of registered deed. The said Smt.Afsarjahan Begum executed a sale deed giving tenancy rights in his favour in the year 1943. The said deed refers to Sy.Nos.12 and 53. After execution of the sale deed, he was in possession of both lands till the date of the Certain Inams Abolition Act coming into force. Insofar as Sy.No.12 is concerned his claim is already upheld and there are no rival claims and there is no challenge.
4. The case of Shaik Nadeem rival claimant is that the said land was a service Inam land attached to Hazrat Khaja Banda Nawaj Darga, Gulbarga of which Sajjadanasheen Darga Sharif. On coming into force of the Karnataka Land Reforms Act, he filed Form No.7 on 19.11.1975 under Section 45 of the Karnataka Land Reforms Act, for the grant of occupancy rights in respect of said survey number. After coming to know that the land is service Inam land, he filed Form No.1 under Rule 5 of Karnataka Certain Inams Abolition Act and Rules before the Land Tribunal. Syed
- 11- Gulam Dastagir also had filed Form No.7 as well as Form No.1 before the Land Tribunal. Syed Gulam Dastagir did not file application personally but through Special Power of Attorney namely Noorul Islam. One Smt.Ahmadi Begum also had filed Form No.1 claiming occupancy rights over the building situated at survey No.53 and certain open space. Her application was rejected. When the respondent No.4 was minor, the said land was under the possession of Afzar Jahan Begum and administration of the same was being done by Subedar. It is only in the year 1948 when the 4th respondent attained majority, the disputed land and another land were transferred under the ownership of 4th respondent. In the meanwhile, Afzar Jahan Begum sold the above said land and another for consideration of Rs.27,500/- in favour of Syed Gulam Dastagir and executed a registered sale deed dated 3rd Isfindar 1354 Fasli, equivalent to 1944 A.D. After purchasing the said land and another, his name was
- 12- not transferred in respect of the lands covered under the sale deed. Therefore, he filed O.S.No.5/1 of 1357 Fasli in the Court of Munsiff at Gulbarga, for declaration that he is entitled to get `patta' transferred in respect of the lands covered under the same making Afzar Jahan Begum as party. The said Afzar Jahan Begum filed a written statement praying for decree in terms of the prayer in the suit. On 05.01.1962 the said Syed Gulam Dastagir executed a registered General Power of Attorney in favour of Noorul Islam and Anwarool Haq authorising them to sell the lands and to receive money from the purchasers and to execute the registered sale deeds in respect of the lands covered under Annexure `C'. Syed Gulam Dastagir executed a Will bequeathing both the lands covered under the sale deed in favour of one of his daughters Shahan Nafees. The said legatee under the Will has executed a registered General Power of Attorney on 18.01.2002 in
- 13- favour of her husband Anwarool Haq describing herself as the owner and possessor of the property.
5. The aforesaid facts makes it clear that right from the year 1944, Syed Gulam Dastagir was claiming himself to be the owner of the land in dispute and another land and in fact he obtained a decree from the Civil Court as such owner. He has all along treated Afzar Jahan Begum as the owner of the property. He has also filed Form No.7 before the Land Tribunal, Shahapur, showing Afzar Jahan Begum as the owner of the property. It is only when he filed Form No.7 before the Land Tribunal, Gulbarga, he has shown respondent No.4 as the owner and Inamdar of the lands in dispute. During the pendency of the proceedings he died. On the basis of the Will executed by him the legatee has been brought on record and on behalf of legatee, her power of attorney holder has been prosecuting the matter.
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6. Respondent No.4, who is the Inamdar, in the enquiry before the Tribunal has admitted that since the time of the father of the petitioner namely Shadulla, they are in possession as tenants under the oral lease and paying the rent as fixed by him. The rent was fixed in the year 1948 and after his father's death, the petitioner is in possession of the land in dispute till 1981. In the year 1981, by virtue of the order passed by this Court in W.A. No.1164/1981, the Tahsildar of Gulbarga Taluk was appointed as a receiver, who took possession from the petitioner. Since then, it is the receiver, who is in possession of the land in dispute. Syed Gulam Dastagir was never in possession of the property. For the first time in the year 1967-68 his name was entered in Col. No.12 of the Record of Rights in view of the decree passed by the Civil Court in O.S.No.5/1 of 1357 Fasli. He has produced electricity
- 15- bills showing he has got installed I.P. set to the well situated in the land and meter No. 6839 which shows he is cultivating the land. The 4th respondent also has admitted that it is his father, who was the tenant and after his death, he is continued as a tenant.
7. Smt.Ahamadi Begum yet another claimant contends that the land in question is an Inam land. Her father-in-law Ziya-Ulla-Shaha was given the land for cultivation on lease during the year 1311 Fasli, as is evident from Muntakhab. It is also evident from the order passed by Awwal Talukadhar made in the year 1317 and 1352 Fasli. Her father-in-law constructed a dwelling house after obtaining necessary permission from the Jagir office in the year 1929 and since then, they are residing in the scheduled property. Her father- in-law was a permanent tenant and he was paying the land revenue to the Jagirdhar during the relevant time.
- 16- After his death, she continued to be in possession of the property. Even after the abolition of the Inam, she is paying the Corporation tax regularly. Her name appears in the katha. She has made an application for grant of occupancy rights in respect of the dwelling house and surrounding area. In support of her claim under Section 7(3) of the Karnataka Certain Inams Abolition Act, 1977, she has adduced evidence. The Chairman of the Land Tribunal was satisfied with the documents and evidence produced by her. Therefore, he held that she is entitled for grant of occupancy rights in respect of dwelling house and surrounding area, whereas the four members of the Land Tribunal rejected her claim.
8. The 4th respondent Sajjada Nashin of Dargha admits the tenancy of Sheik Nadeem and disputes the tenancy of Syed Gulam Dastagir.
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9. The Land Reforms Tribunal conducted an enquiry and parties have adduced oral evidence. All of them have been cross-examined. Documentary evidence was also adduced by all of them. On consideration of the aforesaid oral and documentary evidence on record, the Tribunal held that the land in question is an Inam land belonging to Dargha Hazarath Khaja Banda Nawaz, a Religious Institution and Sajjada Saheb Roza is the Inamdar of the same. The Inam land which belongs to the Religious Institutions of Gulbarga region shall come under the purview of the Karnataka Certain Inams Abolition Act, 1977 and accordingly, the property in dispute which is an Inam land falls under the purview of the said Act. By operation of the said Act, the said lands vests with the Government free from all encumbrances from the appointed day. After considering the rival claims of all the tenants, it held there are no Revenue records to show that Shaik
- 18- Nadeem was in possession of the two lands. The pump- set fitted over the "Sakri Bhavin" has the receipts issued by the KEB with an endorsement that they are in the name of Afzal Begum, W/o.Noorul Islam. Therefore, the KEB bills do not show that Shaik Nadeem is in possession of the suit lands. In the absence of any document to show that Shaik Nadeem was in possession of the suit land on the appointed date as on 01.03.1974 and in the absence of any written document to prove that after his attaining majority, the property is leased in his favour by the 4th respondent, the Land Tribunal held the tenancy put forth by him is not established. Accordingly, his application was rejected.
10. Insofar as the claim of Syed Gulam Dastagir is concerned, it held Smt.Afzar Jahan Begum, under a registered document dated 23rd Aban 1341 Fasli i.e., 1931 A.D., took the land on lease from the Dargha,
- 19- which was under the supervision of a Subedar. It is purchase of a permanent tenancy. Thereafter, she has been paying lease amount regularly, for which receipts have been issued. Later, with the permission of the Dargha, she has built in the land a bunglow for her residence. The said document, which is registered, is more than 30 years old and therefore, the genuineness of it cannot be in question in view of Section 90 of the Indian Evidence Act. Smt.Afzar Jahan Begum transferred the rights of permanent tenancy in favour of Syed Ghulam Dastagir with the permission of Awal Talukdar, vide order dated 11th Behman 1354 Fasli (1944 A.D.) as the right of permanent tenancy is a right on immovable property. Its transfer could be possible only through a registered sale deed after obtaining permission from the Government. Though Syed Ghulam Dastagir was a Chartered Accountant residing at Hyderabad, he was cultivating the land through hired
- 20- labour and therefore he falls within the definition of a tenant. Though in the Power of Attorney executed by him in favour of his attorney, there is no specific recital authorising his agent to file Form No.7 or Form No.1 in view of the broad terms of the Power of Attorney coupled with Order 3 Rule 2 of the Code of Civil Procedure, the attorney was duly authorized to file Form No.1 and Form No.7. The said act has been duly ratified subsequently by execution of another power of attorney and therefore, the Tribunal was of the view that as his name has been mutated in the Record of Rights from the year 1967-68 onwards upto 1973-74 and his name is shown in the cultivators column No.12(2) in the Record of Rights, he is entitled to grant of occupancy rights under the Act.
11. Insofar as the claim of Smt.Ahmadi Begum is concerned, the claim was restricted to the area in and
- 21- around her house. The Chairman of the Land Tribunal has held that she is entitled to grant of rights only to the extent of the property occupied by her. The members of the Tribunal have opposed to the said grant. However, the Tribunal passed an order unanimously deciding the grant of occupancy rights in favour of Syed Ghulam Dastagir's L.R. of Smt.Shahnafees, W/o.Anwarul Haq excluding the area occupied by the house of Smt.Afzal W/o.Noorul Islam, the total area of 11 acres 15 guntas as per Section 5(1) of the Karnataka Certain Inams Abolition Act, 1977. The application filed by Shaik Nadeem has been unanimously rejected. The Chairman thought it proper to grant the rights of area of house consisting of seven rooms and 10 feet around it in favour of Smt. Ahmedi Begum, W/o.Mohammad Bahauddin as per Section 7(3) of the Act. But the other Members of the Land Tribunal have opined to reject this claim. The said order was
- 22- passed on 26.10.2002. Aggrieved by the said order, these two writ petitions are filed.
12. The learned counsel appearing for Shaik Nadeem, assailing the impugned order contended firstly that the registered deed relied on by Syed Ghulam Dastagir do not disclose that what is transferred to him is a lease hold right. On the contrary, it shows what is sold to him is the `patta' rights in the property. His vendor herself did not have any tenancy rights and the document on which reliance is placed, do not show that the Dargha has executed any deed transferring the tenancy rights in her favour. Therefore, the claim of tenancy on the basis of the two registered documents is unsustainable. Secondly, it was contended that Syed Ghulam Dastagir is a Chartered Accountant by profession. He has been residing in Hyderabad from the year 1962. He was neither personally cultivating the
- 23- land nor he was supervising the cultivation of the land. It is his Power of Attorney, who are managing the properties and therefore, when he did not personally cultivate the land, he is not entitled to grant of tenancy rights under the Act. Thirdly, the General Power of Attorney does not authorize his attorneys to file Form No.1. The General Power of Attorney is of the year 1962. Inams Abolition Act had not been enacted on that day and therefore, there was no intention on the part of Syed Ghulam Dastagir to authorise his attorney to file any such applications under that Act. In that view of the matter, the application filed in Form No.1 claiming occupancy rights is not duly authorized and what is illegal at the inception cannot be made legal by a retrospective validation of such illegal Act. Fourthly, it was contended that after the 4th respondent attained majority, he is cultivating the land in dispute. The said land was leased to his father, who was cultivating the
- 24- land during his life time and after his father's death, he is cultivating the land. Though mutation entries are not there, rent receipts are not there, he has produced documents by way of payment of electricity bills, which demonstrates that he has dug a borewell and with that water, he is cultivating the land and he is paying the electricity charges, which proves his case of tenancy in respect of the land. That apart, in the evidence recorded before the Tribunal, the 4th respondent in unequivocal terms has admitted the tenancy of his father and after his death, his tenancy. This document coupled with the tenancy and other circumstances, which are brought on record, clearly proves his tenancy in respect of the land in question. Unfortunately, the Tribunal has not properly appreciated this factual and legal aspect and committed serious error in rejecting the application and therefore, he seeks for setting aside the
- 25- order and allowing his application and dismissing the application of the rival claimants.
13. Per contra, the learned counsel appearing for Syed Ghulam Dastgir submits that it is not in dispute that the land in question is an Inam land. It is also on record that Inamdar has not cultivated the land personally. Smt.Afzar Jahan Begum purchased the right to tenancy, under a registered document from the Subedar, who was managing the affairs of the Dargha. She was personally cultivating the land. The rent receipts produced clearly demonstrates the tenancy and cultivation of the land by her on payment of rent to the Dargha. In fact she sought for permission to construct a Bungalow, which was granted, in pursuance of which she constructed a Bungalow and she was living there. In the year 1943 Syed Ghulam Dastagir purchased the said right of tenancy from her for a valuable
- 26- consideration under a registered lease deed. He was cultivating the land from 1943 to 1962 and in the year 1962 when he moved over to Hyderabad, he executed Power of Attorney and thereafter he was cultivating the land in question through his Power of Attorney Holder. His name is entered in the mutation register on the basis of the said sale deed as well as a decree of Civil Court showing him as a cultivator of the land and the RTC also shows the crops, which are grown on the said land. After the Act came into force, the land vested with the Government. His attorney has filed an application in Form No.1. He has given evidence, he has produced materials to show that he was a tenant on the appointed date. A person who took property under the lease instrument is a tenant as defined under Section 2(34) of the Karnataka Land Revenue Act, who is eligible for grant of occupancy rights under the provisions of the Karnataka Certain Inams Abolition Act, 1977.
- 27- Therefore, the Tribunal was justified in upholding his claim and granting occupancy rights. The said case does not call for any interference.
14. The learned counsel appearing for Smt.Ahmedi Begum submits that in terms of the Act, a building constructed on the Inam land do not vest with the Government at all. By misconception of law, an application is filed claiming occupancy rights in respect of the Bungalow as well as the surrounding land, though the Chairman of the Tribunal upheld the claim, four members of the Land Tribunal rejected it. But in law, as the land did not vest with the Government and as the Act declared that the person in possession of the building can continue to hold the said building, the said legal possession may be made clear so that her possession is not disturbed by any one and they have no claim for the vacant land.
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15. In the light of the aforesaid facts and the rival contentions, the point that arises for my consideration in these proceedings is:
(a) Whether the finding of the Land Tribunal that Syed Ghulam Dastagir is a tenant and Shaik Nadeem is not the tenant requires interference?
(b) Whether Smt.Ahmedi Begum is entitled to grant of ownership rights under Sub-
Sections (2) & (3) of Section 7 of the Act? Point No.1 The land in question is an Inam land. It is a service land attached to the Darga Khaja Bande Nawaz. Gulbarga. This fact is not in dispute. The Inam land vested with the Government under the provisions of the Karnataka Certain Inams Abolition Act, 1977 under Section 4 of the Act. After such vesting, Section 5 of the Act provides for registration of occupancy rights in
- 29- favour of Inamdar as well as in favour of the tenant. In the instant case, Inamdar has not filed any application under the Act for registration as an occupant. It is only the tenants, who have filed application for registration of occupancy rights. Every tenant of the Inamdar or holder of a minor inam shall not be entitled to be registered as an occupant of lands in respect of which he was a tenant immediately before the first day of March, 1974. Therefore, in order to find out whether the applicant, who is claiming to be a tenant is entitled to be registered as an occupant under Section 5 of the Act, what has to be seen is whether he is a tenant immediately before the first day of March 1974. The word `tenant' has not been defined under the Act. However, Sub-Section (2) of Section 3 of the Karnataka Certain Inams Abolition Act, 1977 provides that "the words and expressions used, but not defined in the Act, shall have the meaning assigned to them in the Act or the
- 30- Karnataka Land Reforms Act, 1961". The Act has been defined to mean the Karnataka Land Revenue Act, 1964. The word `tenant' has been defined under the Karnataka Land Revenue Act, 1964 at Section 2(34). `Tenant' means a lessee whether holding under an instrument or an oral agreement and includes the categories mentioned therein in the said provision.
16. In the instant case, Syed Ghulam Dastagir is claiming to be a lessee under an Instrument whereas Shaik Nadeem is claiming to be a lessee under an oral agreement. Syed Ghulam Dastagir has produced the registered document under which, he claims to be a lessee. He has also produced the registered document under which his lessor has acquired tenancy rights. Both these documents are not disputed. The argument is the document executed in favour of Syed Ghulam Dastagir is a document executed by the lessor and it did
- 31- not show that it is a lease and the document executed by the lessor in favour of the lessee proceeds on the assumption that the title to the property is transferred for a valuable consideration and therefore, the said documents cannot be construed as piece of evidence to show that Syed Ghulam Dastagir is a lessee under an instrument. In addition to these two documents, we have on record rent receipts executed by the Inamdar in favour of Smt.Afzar Jahan Begum from 1952 onwards. The Record of Rights produced in the case shows the name of Syed Ghulam Dastagir is entered from the year 1966-68 and it is there up to 01.03.1974. Prior to that Syed Ghulam Dastagir filed a suit in O.S. No.115/1970 against Smt.Afzar Jahan Begum, where a consent decree was passed by the Civil Court declaring his title. The suit was decreed by consent on the basis of which the mutation entry was made. The other suit was filed by Syed Ghulam Dastagir against Inamdar in
- 32- O.S.No.115/1970, which came to be dismissed as withdrawn on 24.08.1999. During the said period, an interim order of temporary injunction was in force preventing the Inamdar from interfering with the possession of the property. As against this evidence, Shaik Nadeem relies on the admission of the Inamdar creating the tenancy in his favour and in favour of his father. Electricity bills for the period from 1968-69 are produced. Further they contend that the suit filed by Syed Ghulam Dastagir was withdrawn, which according to them shows he has no right to the property. When we take into consideration this material evidence on record, it shows that the Inamdar was not cultivating the land. At an undisputed point of time, two registered documents came into existence, which are not in dispute. Rent receipts are issued, mutation entries are made, suit was filed in the year 1970 and for nearly 29 years, the order of injunction was in favour of Syed
- 33- Ghulam Dastagir. As opposed to this, except the admission of the Inamdar, who was a minor at the time of execution of the aforesaid two registered documents and the rent receipts coming into existence, admitting the tenancy of Shaik Nadeem or his father, which are not corroborated by any evidence on record, do not carry any weight. Electricity bill on which a reference is made is not in the name of Shaik Nadeem. It is in the name of Afzar Jahan Begum. It supports the case of Syed Gulam Dastagir. Therefore, no reliance can be placed on the said document. The dismissal of the suit after 29 years during which period there was an order of temporary injunction was in force clearly demonstrates neither the Inamdar nor any persons claiming under him were in possession of the property. Under these circumstances, the finding recorded by the Tribunal that Syed Ghulam Dastagir's tenancy is proved and Shaik Nadeem's tenancy is not proved is not based on
- 34- legal evidence. The argument was those two registered documents do not show transfer of tenancy rights. It shows the transfer of absolute right in the property. It is true there are no express words transferring the tenancy rights. Whatever right the lessor acquired from the Inamdar is transferred to the lessee and lessee acquired whatever rights the lessor had in the property. When he is claiming a lessor's right of tenancy and it is only tenancy right, which his lessor could have acquired from the Inamdar. Mere mentioning of higher right would make no difference in the eye of law. In that way, a valid claim cannot be negatived. That is what precisely the Tribunal has held.
17. Insofar as the contention that to be entitled to be registered as an occupant, the tenant must be personally cultivating the land on the appointed date is concerned, it has no substance. As set out above, the
- 35- Act does not define who is a `tenant'. For the definition of a `tenant', we have to fall back upon the definition under the Karnataka Land Revenue Act and the Karnataka Land Reforms Act. The Karnataka Land Revenue Act defines a `tenant' means a lessee whether holding under an Instrument or under a oral lease. To satisfy the requirement of a `tenant' under the Karnataka Land Revenue Act, it is not necessary that he should be a tiller of the land. If he is a lessee under an instrument or under an oral agreement, that satisfies the requirement of `tenant' under the Act. In fact the Apex Court, had an occasion to deal with the purpose and scope of the Land Reforms Act and the Inams Abolition Act and in the case of Muniyallappa V/s. B.M.Krishnamurthy and others reported in AIR 1992 SC 212 it was held that the purpose and scope of the Karnataka Land Reforms Act and the Karnataka Inam's Abolition Act are distinct. The Inams Abolition Act was
- 36- enacted for the purpose of abolition of Inam tenures and conversion of such tenures into Ryotwari tenure and in that process grant of occupancy rights to the Inamdars and the three classes of tenants specified in that Act. The purpose of the Land Reforms Act, however, is quite different. The main purpose was to abolish the relationship of landlord and tenant in respect of the tenanted lands and to confer occupancy rights on tenants, who are personally cultivating the lands. Therefore, the rejection of the claim of the tenant under the Inams Abolition Act does not lead to the inference that he has no claim for occupancy right under the Land Reforms Act. Where the tenant claims that he is a `deemed tenant' as provided under Section 4 of the Land Reforms Act, the requirement of deemed tenant, as provided under Section 4 of the Tenancy Act, must be determined by the Land Tribunal.
- 37-
18. Therefore, under the provisions of the Inams Abolition Act, the tenancy will be conferred not only on the tenant, but also on the Inamdar whereas under the Land Reforms Act, tenancy right is conferred only on the tenant that too, who is the tiller of the land as on the appointed day. That requirement is not necessary for grant of occupancy rights under the Inams Abolition Act. Therefore, the Legislature consciously has not defined the word `tenant' under the Act and has adopted the definition of `tenant' both under the Karnataka Land Revenue Act as well as under the Karnataka Land Reforms Act so that a tenant, who falls under any one of these definitions is entitled to grant of occupancy rights. The definition of `tenant' under the Karnataka Land Revenue Act do no insist on the tenant tilling the land personally. If a lease is created under an instrument or orally, then notwithstanding the fact he
- 38- may not be tilling the land, he is entitled to grant of occupancy rights under the law.
19. Syed Ghulam Dastagir claims lease hold rights under a registered instrument and subsequently, his name is entered in the Record of Rights from the year 1967-68 till 01.03.1974 the appointed date and he had the benefit of interim order restraining the defendant from interfering with his possession of the property for a period of 29 long years commencing from 1970. Therefore, the Tribunal was justified in granting occupancy rights in favour of Syed Ghulam Dastagir.
20. It was further contended that this application is filed by a person, who is not duly authorized. Though he is a power of attorney holder, the power of attorney do not expressly authorize the power of attorney holder to file such application. Therefore, the contention that the application in Form No.1 filed before the Tribunal is
- 39- one without authority and on that basis, no occupancy rights could have been granted, could not be entertained. It is not in dispute that the Power of Attorney has been executed in the year 1962. It was a General Power of Attorney. On the day the Power of Attorney was executed, the principal was a Chartered Accountant by profession and was a permanent resident of Hyderabad. Therefore, he appointed two attorneys to manage the properties, to let out the land, to collect rent, to cultivate the land by hired labour and to pay them hire and all acts, which are necessary for the proper management of the property in question. Thereafter, the Power of Attorney further states that the attorney holder is employed to do all other lawful acts and things as effectually as he could do the same in person concerning all the present and further legal proceedings. Whatsoever the said attorneys had been authorized by the principal employer to do the same in
- 40- his name and in his behalf and specifically set out several functions. Filing of Form No.1 under the Inams Abolition Act was not expressly mentioned there. Therefore, the question for consideration is;
In the absence of an express provision whether the attorney was authorized to file Form No.1, which they have filed?
Chapter X of the Indian Contract Act, 1872 deals with Agency and appointment and authority of agents. Section 186 provides that the authority of an agent may be expressed or implied. As per Section 187 an authority is said to be express when it is given by words spoken or written. An authority is said to be implied when it is to be inferred from the circumstances of the case; and things spoken or written, or the ordinary course of dealing, may be accounted in the circumstances of the case. An agent having an authority to do an Act has authority to do every lawful
- 41- thing which is necessary in order to do such Act. An agent has authority in an emergency, to do all such Acts for the purpose of protecting his principal from loss as would be done by a person of ordinary prudence, in his own case under similar circumstances.
21. A reading of these provisions makes it very clear that the authority conferred on an agent may be expressed or implied. In the case of emergency, an agent is permitted to do all such acts, which are necessary to protect the interest of the principal. In the event of an agent performing acts, which are not expressly or impliedly provided for in the Power of Attorney but if it is done to protect the interest of the principal, an opportunity is given to the principal either to repudiate or ratify such Act.
22. Section 197 deals with ratification, which again may be express or implied. Ratification may be
- 42- expressed or may be implied in the conduct of the person on whose behalf the acts are done. Section 196 expressly provides that where acts are done by one person on behalf of another, but without his knowledge or authority, he may elect to ratify or to disown any such acts. If he ratifies them, the same effects would follow as if they had been done personally. Therefore, unless such act is repudiated by the principal, there is implied ratification. There could be an express ratification by executing the same after the performance of the said Act. When once such document is executed, the ratification dates back to the execution of the Power of Attorney, at any rate immediately prior to the said act making the act a valid one.
23. In the instant case, in the year 1962 when the Power of Attorney was executed, it was a General Power of Attorney given to manage the property. All powers for
- 43- the proper management of the property was conferred to the attorney. It is true at that point of time it was not in contemplation of the principal that the State Legislature would pass the Inams Abolition Act, the effect of which would be that all the Inams would be abolished and all the Inams would vest with the Government free from all encumbrances and the Inamdars or the tenants were given an opportunity to claim occupancy rights. But the fact remains that when an agent has been entrusted with the management of the property by such instrument, if the right of the principal is taken away by the Government and if the very same Legislation gave a right to file an application to the principal to claim back the property, the person in management owes a duty to file an application and claim back the property. If the attorney has performed that act, it is one of the lawful acts, which he was expected to perform under the power of attorney under which he was appointed. Therefore,
- 44- the power of attorney being a General Power of Attorney, the terms of the power of attorney has to be understood in the context of the attorney holder doing all lawful acts to protect the interest of the principal and to see that the principal does not suffer any loss or damage in respect of the property management that has been entrusted to the agent. Therefore, it is not possible to hold that the power of attorney executed in the year 1962 by Syed Ghulam Dastagir in favour of his agent do not authorize the attorney holder to file Form No.1. At any rate, after he filed Form No.1 and started prosecuting the matter, ratification is done by executing another power of attorney. As long as the principal has not repudiated, the act of the agent, there is an implied ratification and subsequently, the ratification is made expressly and once the ratification is made, it dates back to the date prior to the filing of Form No.1 and rightly the Tribunal has held that Form No.1 filed is
- 45- valid and it is not unauthorized as contended by the rival claimant. In that view of the matter, I do no see any merit in the writ petition filed by the rival claimant challenging the grant of occupancy rights in favour of Syed Ghulam Dastagir.
Point No.2
24. Insofar as the claim of Smt.Ahmedi Begum is concerned, Section 7 of the Karnataka Inams Abolition Act, 1977 provides for vesting of buildings which reads as under:
7. Vesting of buildings.- (1) Every building other than a building referred to in sub-
section (2) situated within the limits of a minor inam or an inam which was owned immediately before the appointed date by the holder of a minor inam or the inamdar, as the case may be, shall with effect from such date vest in the holder of minor inam or the inamdar.
- 46- (2) Every private building situated within the limits of an inam shall, with effect from the said date, vest in the person who owned it immediately before that date.
(3) Notwithstanding anything in sub-sections (1) and (2), where a tenant is in occupation of a dwelling house on a site belonging to the inamdar or the holder of a minor inam such tenant shall not be evicted therefrom but shall be conferred with ownership thereof and the site on payment of such amount as the Tribunal may fix having regard to, -
(i) the land revenue payable on the
land;
(ii) who constructed the dwelling
house; and
(iii) such other factors as may be
prescribed."
25. A reading of the aforesaid provisions makes it clear that any building, which is situated in the Inam land vests with the Inamdar and it does not vest with the Government. If other than the Inamdar the said
- 47- building is owned by any other person, then with the coming into force of this Act, that building vests with the owner. In other words it neither vests with the Government nor vests with the Inamdar. But if a tenant is in occupation of a dwelling house on a site belonging to the Inamdar, under Section 7(3) of the Inams Abolition Act, such tenant shall not be evicted therefrom, but shall be conferred with ownership thereof and the site on payment of such amount as the Tribunal may fix having regard to,- (i) the Land Revenue payable on the land; (ii) who constructed the dwelling house; and (iii) such other factors as may be prescribed.
26. The material on record discloses that the father-in-law of Smt.Ahmedi Begum took the land on lease from the Inamdar and with permission of the Inamdar he constructed a residential unit and he was there till death. After his death, his daughter-in-law
- 48- continued to be in possession. On the day, the Act came into force, a right is conferred on the tenant under the Inam under Section 7(3) of the Karnataka Certain Inams Abolition Act, 1977 to claim occupancy right in respect of the said building on the land belonging to the Inamdar. The Chairman was fully justified in granting occupancy rights in favour of Smt.Ahmedi Begum. The four members of the Tribunal without understanding the legal consequences, without any reasons have refused to subscribe their signature to the view of the Chairman. The law is clear on the point. There is no discretion left. Once a tenant has constructed a building in the Inam land and he is claiming tenancy under the Inamdar by operation of law, the ownership rights of the said built portion is to be conferred on the tenant subject to the requirements prescribed in the Section. Therefore, the order passed by the Tribunal rejecting her claim is unsustainable. Accordingly, it is set-aside.
- 49-
27. Hence, I pass the following order:
(a) W.P.No.759/2003 is allowed.
(b) The Land Reforms Tribunal is directed to grant occupancy rights in respect of the building under Sub-Section (3) of Section 7 of the Karnataka Certain Inams Abolition Act, 1977 to the petitioner Smt.Ahmedi Begum collecting the necessary amount.
(c) W.P. No.46089/2002 is dismissed.
Parties to bear their own costs.
Sd/-
JUDGE Sdu/SPS