Karnataka High Court
Sayyed Mohd. Rafi vs State Of Karnataka, on 23 September, 2013
Bench: K.L.Manjunath, A.N.Venugopala Gowda
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 23 R D DAY OF SEPTEMBER 2013
PRESENT
THE HON'BLE MR.JUSTICE K.L.MANJUNATH
AND
THE HON'BLE MR.JUSTICE A.N.VENUGOPALA GOWDA
WRIT APPEAL No.30240/2013 (LR)
BETWEEN:
Sayyed Mohd. Rafi
S/o.Sayyed Budesab Mirchoni
Age: 75 years, Occ: Agriculture,
R/o. Savanur, Tq: Savanur,
Dist: Haveri.
...Appellant
(By Sri Naveen Chatrad, Advocate.)
A N D:
1. State of Karnataka,
Dept. of Land Revenue,
M.S.Building, Bangalore,
R/by its Secretary.
2. Land Tribunal, Savanur,
Tq: Savanur, Dist: Haveri,
R/by its Chairman.
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3. Court of Ward, Savanur,
Tq: Savanur, Dist: Haveri,
R/by Asst. Commissioner.
4. Smt.Shahajad Begum
W/o.Mustaq khan Biradhar Navab
Age: Major,
R/by her P.A. holder,
Mustaq khan Firoz Khan
Biradhar Navab
Age: Major,
R/o. Savanur, Tq: Savanur,
Dist: Haveri.
...Respondents
(By Sri F.V.Patil, Advocate, for Sri N.P.Vivekmehta,
Advocate, for C/R.4,
Sri Mahesh Wodeyar, Addl. Government Advocate, for
R.1 to R.3.)
This Writ Appeal is filed under Section 4 of the
Karnataka High Court Act, 1961, praying to set aside
the order dated 8.1.2013, passed by the learned
single Judge of this Hon'ble Court, in
W.P.No.11313/2003 and consequently allow the writ
petition, etc.,.
This Appeal coming on for preliminary hearing
this day, A.N.Venugopala Gowda, J, delivered the
following:
JUDGMENT
The appellant being aggrieved by the order of dismissal passed in W.P.No.11313/2003 has filed this writ appeal.
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2. Form-7 filed by the appellant for grant of occupancy rights having been rejected by the Land Tribunal, Savanur on 3.2.2003, on the ground that the lease was created through a commissioner of Court of Wards and as such, it would not amount to creating any tenancy in view of S.108 of the Karnataka Land Reforms Act, 1961, W.P.No.11313/2003 was filed. Learned Single Judge, finding that the appellant's name appears in the revenue records from 1965 to 1968 and that there is no record to show that he was cultivating the land prior to the commencement of proceedings before the Civil Court under the Court of Wards Act, having noticed the provision under S.108 of the Act and also the ratio of the decision in the case of Hoovappa Mahadev Manse vs. Land Tribunal, ILR 1987 Karnataka 2797, having found no ground to interfere with the impugned order of the Land Tribunal, dismissed the writ petition.
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3. Mr. Naveen Chatrad, learned advocate for the petitioner, contended that in view of the endorsement issued by the Tahasildar, stating that the documents pertaining to the year 1938 to 1992 was burnt on 29.04.2000, the appellant being not able to produce the revenue records and respondent No.4 having not produced the record to show that the appellant was inducted as a tenant by the Court of Wards, erred in dismissing the writ petition. He submitted that the appellant has been cultivating the lands in dispute prior to commencement of the proceedings in the Court of Wards and therefore, S.108(a) of the Act is applicable. He further submitted that the impugned order passed by the Land Tribunal and the learned Single Judge being contrary to the record of the writ petition, interference is warranted.
4. Sri F.V. Patil, learned advocate for Caveator/respondent No.4 and Sri. Mahesh Wodeyar, 5 learned AGA for respondent Nos.1 to 3, on the other hand made submissions in support of the order passed by the learned Single Judge and the impugned order in the writ petition, passed by the Land Tribunal, Savanur.
5. We perused the writ record.
6. Section 108 of the Act is an exception to the general rule of granting occupancy rights. A perusal of the said section makes it clear, that, if, the lands are under the management temporarily by a Civil Court, the provisions of the Act shall not apply. The proviso (a) of Section 108 of the Act indicates that the bar under S.108 has no application, if the tenancy was subsisting at the time when the lands were taken under the management temporarily by the Civil Court, which means the lands were leased by the owner prior to taking over by the receiver pursuant to the order passed by the Court.
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7. In the circumstances, the point for consideration is "Whether the appellan t has placed on record any cred ible mater ial in proof of lease of the lands in dispute, prior to the commencemen t of the proceedings in the Cour t of Wards at Savanur?"
8. According to the writ petition averments, the lands in question were leased for cultivation in the year 1935 and since then, he is cultivating the same as a tenant and his name appears in column No.12 of the record of rights and that the lands having vested in the State Government with effect from 01.03.1974, the rejection of Form-7 by the Land Tribunal is illegal.
9. Mr. Naveen Chatrad, learned advocate vehemently contended that the lands in dispute, on the appointed date, vested with the State Government, since the appellant was the tenant and hence, in view of Form-7 filed, the occupancy rights 7 ought to have been conferred and that the rejection of the claim is arbitrary and illegal.
10. Mr.F.V. Patil, learned advocate, on the other hand contended that there being no dispute that, since from 1940, the proceedings were pending in the Court of Wards, and that 'Ek Sal leasehold rights' were created in favour of several persons, the record of rights only showing the name of appellant from 1965 to 1968, his claim not falling under proviso(a) of Section 108 of the Act and tenancy having been crated during the period of management by the Court, falling under proviso (b) of Section 108 of the Act, the Land Tribunal is justified in rejecting the claim for grant of occupancy rights, in view of the ratio of decision in the case of Hoovappa Mah adev Manse (supr a).
11. The burden of proof that the lands in dispute were leased by the owner is on the claimant. Appellant does not dispute the fact that the case was 8 pending before the Court of Wards, Savanur. Since the appellant has pleaded in the writ petition that his name appears in column No.12 of the record of rights since from 1935, there is no difficulty for him to produce the same. Except ROR from 1965 to 1968, there is no other record produced to show that the appellant cultivated the lands in dispute prior to the date of commencement of the Civil Court proceedings. Undeniably, the lease created for the period from 1965 to 1968 was by the Court Commissioner. In view of the proviso (b) of Section 108 of the Act, the claim of the appellant for grant of occupancy rights is untenable, in terms of ratio of the decision in the case of Hoovappa Mah adev M anse vs. Land Tribunal, ILR 1987 Karnataka 2797, (supra), wherein it has been observed as follows :-
"21. The main provisions of Section 108 make it clear that nothing in the provisions of the Land Reforms Act except Section 8 (relating to rent) shall apply to lands taken under the management 9 of Court of Wards. That means, provisions such as Sections 4, 45, 48-A etc., are not at all applicable. In fact, a person induced to cultivate the land by the Court of Wards does not even come within the definition of 'tenant' under the Land Reforms Act. The land falls outside the sweep of the Land Reforms Act during the period of management by Court of Wards.
Proviso (a) to Section 108 is not applicable to the case of the appellant, because admittedly there was no tenancy subsisting on the date of taking over the management. He comes under proviso (b) which is specific and govern the tenancy created during the period of management by Court of Wards. Public interest requires that those entrusted with the responsibility of managing an estate or land under statutory powers should not burden the estate or land permanently. Such managements by Court of Wards or Receivers appointed by any Court, are temporary in duration. Their task is to preserve the properties for the real title holder. This purpose will be defeated, if, in the course of management they are constrained to have lands cultivated by third parties and those cultivations are to be there permanently, resulting in loss of title to the title holder. Therefore, proviso (b) in mandatory terms, 10 says that such tenants shall be dispossessed and the possession shall be delivered to the persons lawfully entitled to such possession on the cessation of management by Court of Wards, etc."
12. In the case of Ramappa Kad appa Konnur vs. S angappa Parappa Kavalli, ILR 1987 Karnataka 3488, it has been held as follows :-
"53. Section 108 of Land Reforms Act excludes all provisions of the Act from the lands taken under management by Court of Wards. That means the deeming status as a tenant under Section 4 also gets excluded The effect of Section 108 is to wipe out any rights if any accrued or vested in a person as a tenant under the Court of Wards. The ratio of the decision of the Supreme Court in Parvati v. Fatesinhrao [AIR 1986 SC 2204], is to the same effect. There, when a Notification under Section 88(1) of the Bombay Act, 1948 was issued, thereby, provisions of the said Act ceased to apply to the areas covered by the Notification, Supreme Court held that the effect of the Notification was that all rights, title, obligation etc., accrued or acquired under the said Act ceased to exist and the provisions of the Act will not apply to 11 such lands. It was also held that in view of the express provisions governing the situation, the provisions purporting to save the rights acquired earlier, also will not apply."
13. On the date of filing writ petition no.11313/2003, appellant's age has been shown as 65 years. If his claim that the lands in dispute were leased out to him for cultivation in the year 1935 by Mahaboob Ali Khan Biradar Navab, owner of the lands, in the year 1935, were to be considered, then the appellant at that point of time must be of 3 years of age. Hence, we do not find any merit in the claim that the property was obtained on lease in the year 1935. A boy of 3 years age cannot be expected to obtain lease of agricultural lands for cultivation and also cultivate the same personally. The appellant has not brought on record any credible material in support of his claim that the lands in dispute were leased to him earlier to the commencement of proceedings in the Court of Wards at Savanur. 12
14. In view of the foregoing, Form-7 filed by the appellant has rightly been rejected by the Land Tribunal and the learned Single Judge is justified in dismissing the writ petition. We do not find any justification, to set aside the order passed by the learned Single Judge and to quash the impugned order in the writ petition, passed by the Land Tribunal, Savanur.
In the result, writ appeal being devoid of merit is dismissed with no order as to costs.
Sd/-
JUDGE Sd/-
JUDGE Mrk/-