Karnataka High Court
Sri B M Lakshminarayana Rao vs The Assistanat Commissioner on 1 August, 2017
Author: B.S.Patil
Bench: B.S.Patil
WP.8987/2016
& WPs.10571-10574/2016
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF AUGUST, 2017
BEFORE
THE HON'BLE MR.JUSTICE B.S.PATIL
W.P.No.8987/2016
& W.P.Nos.10571-10574/2016 (LR-RES)
BETWEEN
1. SRI B.M.LAKSHMINARAYANA RAO
AGED ABOUT 75 YEARS
SON OF LATE MADHVARAYA BHATTA
2. SRI K.B.RAMAKRISHNA
AGED ABOUT 69 YEARS
SON OF LATE MADHVARAYA BHATTA
3. SRI K.B.SURYAKANTHA
AGED ABOUT 62 YEARS
SON OF LATE MADHVARAYA BHATTA
4. SRI B.M. VENKATESH
AGED ABOUT 64 YEARS
SON OF LATE MADHVARAYA BHATTA
ALL ARE R/AT ASHWATHAPURA,
BADAGAMIJARU,
MANGALORE TALUK,
ALL ARE REP BY PETITIONER NO.1 AS THEIR
POWER OF ATTORNEY HOLDER.
5. M/s SUPREME INTERNATIONAL COMPANY,
A PARTNERSHIP FIRM, HAIVNG ITS
BRANCH OFFICE AT PRAKASHA BUILDING,
2ND FLOOR, BRNACH OFFICE AT KULOOR,
MANGALORE-3 AND HEAD OFFICE AT
D-14, KAILASH COLONY,
NEW DELHI,
REP BY ITS PARTNER- SRI GURSHARAN SINGH,
S/O LATE LAL SINGH,
AGED ABOUT 60 YEARS,
R/AT E-382, 2ND FLOOR
WP.8987/2016
& WPs.10571-10574/2016
2
GREATER KAILASH PART-I,
NEW DLEHI-110 048. ... PETITIONERS
(By Sri D.L.N.RAO, SR.ADV. FOR Sri R.NARENDRA, ADV.)
AND
1. THE ASSISTANAT COMMISSIONER,
MANGALORE SUB-DIVISION,
MANGALORE.
2. THE TAHSILDAR,
MOODBIDRI,
MANGALORE TALUK. ... RESPONDENTS
(By Smt.B.P.RADHA, AGA)
THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE
ORDER OF REMAND DTD.8.1.2016 PASSED BY THE HON'BLE
KARNATAKA APPELLATE TRIBUNAL IN APPEAL NO.1152/2014
[REV.], AT ANNEXURE-P AND ETC.
THESE PETITIONS COMING ON FOR ORDERS THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
1. Petitioners are calling in question order dated 08.01.2016 passed by the Karnataka Appellate Tribunal in Appeal No.1152/2014 vide Annexure-P. By the said order, the Tribunal has remanded the matter to the Assistant Commissioner to consider the question of alleged violation of provisions of Section 79B of the Karnataka WP.8987/2016 & WPs.10571-10574/2016 3 Land Reforms Act (for short, 'the Act') by conducting spot inspection so as to ascertain whether the lands in question purchased by petitioner No.5 from petitioner Nos.1 to 4 were suitable for cultivation and to pass fresh order in the matter after recording evidence.
2. Facts briefly stated leading to these writ petitions are that father of petitioners 1 to 4 herein purchased lands in question situated at Kadandale Village of Mangaluru Taluk in a court auction on 05.12.1945 and got registered the same vide Sale Deed dated 28.03.1946. Lands are described as punja lands (uncultivable lands). From petitioners 1 to 4, petitioner No.5 has purchased the lands in question vide registered Sale Deed dated 14.01.2004. Certain persons claiming to be the tenants applied before the Land Tribunal, Mudbidare requesting for grant of occupancy rights. They asserted that the lands were agricultural lands capable of cultivation. The Land Tribunal passed separate orders on 06.03.2002 and 27.03.2002 declaring that the lands in question were punja lands not capable of being cultivated and hence, WP.8987/2016 & WPs.10571-10574/2016 4 applications filed by them could not be entertained for grant of occupancy rights. Two batch of writ petitions were filed in W.P.Nos.28526-532/2002 and W.P.Nos.28533-542/2002 challenging these two orders of the Land Tribunal. This Court set aside the orders passed by the Land Tribunal by separate orders on 04.10.2002 and 01.08.2006 respectively and remitted the matter for fresh consideration by providing opportunity to the tenants to prove their case.
3. After remand, the Land Tribunal, Mudbidare conducted spot inspection and held enquiry. It returned findings holding that the lands were punja lands and thus rejected the application again vide order dated 16.06.2011. The said order was challenged before this Court again in W.P.Nos.2567-2580/2012. This Court dealt with the precise question as to whether the lands in question fell within the definition of Section 2(18) of the Act which defined the expression 'land'. The Government took a specific stand before this Court that the lands in question were punja lands and were not cultivable lands and hence, WP.8987/2016 & WPs.10571-10574/2016 5 they did not fall within the definition of 'land under cultivation', so as to claim tenancy rights, muchless to maintain application before the Land Tribunal. This Court, after considering the respective contentions and after taking note of the fact that the Land Tribunal having conducted spot inspection and after holding enquiry had held that the lands were uncultivable punja lands, question of remanding the matter yet again to provide opportunity to the so called tenants to lead additional evidence did not arise. Indeed, this was the submission made by the State which this Court has taken note of while dismissing the writ petitions filed by the tenants. This order passed by this Court in W.P.Nos.2567- 2580/2012 dated 28.05.2012 has attained finality having been confirmed in W.A.No.4225-4238/2012 disposed of on 01.02.2013.
4. Though the order of this court was brought to the notice of the Karnataka Appellate Tribunal which was seized of the question whether there was any violation of provisions contained under Section 79B of the Act in the WP.8987/2016 & WPs.10571-10574/2016 6 mater of sale of the land by petitioners 1 to 4 in favour of petitioner No.5 vide registered Sale Deed dated 14.01.2004, the Tribunal has glossed over the same and has remanded the matter back to find out whether the land was capable of being brought under cultivation so that application of Section 79B of the Act to the transaction could be ascertained.
5. As rightly contended by Sri D.L.N.Rao, learned Senior Counsel appearing for petitioners, question whether the land was a punja land not capable of cultivation having attained finality as per the decision rendered by this Court in W.P.Nos.2567-2580/2012 dated 28.05.2012 affirmed in W.A.No.4225-4238/2012 disposed of on 01.02.2013, it was neither just, nor legal for the Tribunal to ignore the said order and again remit the matter for fresh consideration for leading evidence in respect of the very question as to whether the land was cultivable punja land or not cultivable. In para 5 of the order passed in W.A.No.4225-4238/2012, the Division Bench of this Court has observed as under:
WP.8987/2016
& WPs.10571-10574/2016 7 "Before the learned Single Judge and so also before us in these appeals, it was vehemently contended that the appellants were not given sufficient opportunity to lead evidence after the order of remand to prove that the lands in question are cultivable and they fall within the definition of land under cultivation so as to claim tenancy rights, much less, to maintain applications/Form-7 before the Land Tribunal for necessary orders. The Tribunal on all the occasions after having considered the materials on record and after spot inspection held that the lands in question cannot be brought under cultivation and they do not fall within the definition of land as provided for under Section 2(18) of the Act."
It is thus clear that finding regarding nature of the land as punja (uncultivable) land has attained finality. The Tribunal could not have remanded the matter to reconsider this question. If the same is permitted it will tantamount to facilitating findings contrary to the decision of the Division Bench which is impermissible.
6. Petitioner No.5 has purchased the lands in question having made proper enquiry as to the nature of the land WP.8987/2016 & WPs.10571-10574/2016 8 and being satisfied of the fact that the lands had been recorded as uncultivable punja lands. These lands are treated as punja lands and the application filed by the so called tenants seeking occupancy rights in respect of lands in question claiming them as lands capable of being cultivated was dismissed by the Land Tribunal and affirmed by this Court.
7. For the purpose of Section 79B of the Act, the character of the land cannot change. There cannot be any further investigation for the purpose of Section 79B of the Act to find out whether these lands were indeed capable of cultivation. Once it is held by the competent Land Tribunal and by this Court while disposing of W.P.Nos.2567-2580/2012 that the lands were punja lands not capable of cultivation, said finding in respect of the said land would be binding. The Tribunal has, therefore, erred in not taking note of the order dated 28.05.2012 passed by this Court in W.P.Nos.2567-2580/2012 recording a finding that the lands were punja lands.
Indeed this order was brought to the notice of the Tribunal WP.8987/2016 & WPs.10571-10574/2016 9 as is clear from the observations made by the Karnataka Appellate Tribunal in paragraph 11 of the impugned order. However, the Tribunal has ignored the findings recorded by this Court in W.P.Nos.2567-2580/2012. Therefore, the order passed by the Karnataka Appellate Tribunal remanding the matter is not sustainable in law.
8. Hence, these writ petitions are allowed. Impugned order passed by the Karnataka Appellate Tribunal is set aside. It is made clear that as the lands in question are uncultivable punja lands, question of initiating proceedings under Section 79B of the Act in respect of sale transaction dated 14.01.2004 under which petitioner No.5 has purchased the lands in question from petitioners 1 to 4 does not arise.
Sd/-
JUDGE PKS