Karnataka High Court
Sri Kumaran Childrens Home vs The State Of Karnataka on 1 December, 2014
Bench: N.K.Patil, Rathnakala
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 1ST DAY OF DECEMBER, 2014
PRESENT
THE HON'BLE MR. JUSTICE N.K.PATIL
AND
THE HON'BLE MRS.JUSTICE RATHNAKALA
WRIT APPEAL NO.4135 OF 2009 (LR)
BETWEEN:
1. SRI KUMARAN CHILDREN'S HOME
EDUCATIONAL COUNCIL -
A SOCIETY REGISTERED UNDER THE
PROVISIONS OF THE KARNATAKA
SOCIETIES REGISTRATION ACT,
HAVING ITS OFFICE AT VI-A MAIN,
TATA SILK FARM, BASAVANAGUDI,
BANGALORE - 560 004.
REPRESENTED BY ITS SECRETARY:-
MRS.MEENAKSHI BALAKRISHNAN.
2. MRS. MEENAKSHI BALAKRISHNAN
W/O. LATE SRI G.S.BALAKRISHNAN,
NO.56/9, VI MAIN,
TATA SILK FARM, BASAVANAGUDI,
BANGALORE - 560 004.
...APPELLANTS
(BY SRI VIVEK HOLLA FOR M/S HOLLA & HOLLA)
AND:
1. THE STATE OF KARNATAKA
REPRESENTED BY
REVENUE SECRETARY,
VIDHANA SOUDHA,
AMBEDKAR VEEDHI,
2
BANGALORE - 560 001.
2. THE ASSISTANT COMMISSIONER
BANGALORE SOUTH SUB-DIVISION,
OLD TALUK OFFICE BUILDING,
BANGALORE - 560 009.
...RESPONDENTS
(BY SRI M.I.ARUN, AGA.)
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE
ORDER PASSED IN WRIT PETITION NO.27300/2003 DATED
23/10/2009.
THIS WRIT APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 11/11/2014 AND COMING ON
FOR PRONOUNCEMENT OF JUDGMENT THIS DAY,
RATHNAKALA J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed challenging the order dated 23.10.2009 in W.P.No.27300/2003 passed by the learned Single Judge, wherein, the order dated 02.09.2002 in Appeal No.363/2002, on the file of the Karnataka Appellate Tribunal, disposed of on 02.09.2002, was quashed and order dated 30.05.2002 in Case No.LRF(83) 164/2001 - 02 passed by the Assistant Commissioner, Bangalore South Sub-Division, Bangalore is restored.
2. To put the facts in a nutshell:
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First respondent (hereinafter referred as 'the Society') is a Society engaged in imparting education and the second appellant is the Secretary of the said Society.
The Society purchased agricultural lands at Nettigere Village, Uttarahalli Hobli, Bangalore South Taluk in the year 1988, from its owners without prior permission from the Government. Since the transaction was in violation of Sections 79B and 109 of Karnataka Land Reforms Act (hereinafter referred to as 'the Act' for brevity), a case was registered against the appellants in Case No.LRF 83/164/2001 - 2002 on the file of the Assistant Commissioner, Bangalore South Sub-Division, Bangalore. Proceedings were initiated based on the report filed by the Special Tahsildar, Bangalore South Taluk, for an enquiry under Sections 79B and 109 of the Act against the appellants for taking action under Section 83 of the Act in respect of the lands. Notice was 4 issued to the appellants herein. After giving audience to both parties, vide considered order, the Assistant Commissioner held that the lands bearing survey No.51/3 measuring 05 guntas, survey No.51/4 measuring 17 guntas, survey No.50/3 measuring 28 guntas, survey No.50/2 measuring 26 guntas, survey No.51/1 measuring 22 guntas, survey No.52 measuring 1 acre 18 guntas, survey No.51/2 measuring 2 acres 29 guntas, survey No.50/1 measuring 23 guntas, survey No.52 measuring 3 acres, survey No.52 measuring 3 acres, in all measuring 13 acres 19 guntas at Nettigere Village, Uttarahalli Hobli, Bangalore South Taluk, were acquired by the appellant Society, in contravention of Section 79B of the Act and transactions are null and void. Accordingly, the lands are forfeited to the State free from all encumbrances, with a direction to the Tahsildhar to take possession of the property under Section 76 of the Act and thereafter, to dispose of the lands under Section 77 of the Act. Aggrieved parties 5 took the matter in appeal before the Karnataka Revenue Appellate Tribunal in A.No.363/2002. The said appeal was allowed and the order of the Assistant Commissioner was set aside. Against the said order, writ petition came to be filed by the State in W.P.No.27300 of 2003 and the learned Single Judge allowed the writ petition and set aside the order of the Appellate Tribunal and restored the order of the Assistant Commissioner.
3. Sri Vivek Holla, learned Counsel for the appellants submits that it is always permissible for a Society, Trust or Educational Institution to acquire and hold agricultural land under the provisions of Section 79B read with Section 63 (7)(a) of the Act, subject to the condition that the income from the agricultural land shall be exclusively used for the purpose of the Society, Trust or Educational Institution. The question whether the income from the agricultural land is solely utilised 6 for the purpose of the concerned Society shall be adjudicated under Rule 22 of the Karnataka Land Reform Rules by the Divisional Commissioner only. The Society is immune from the operation of Section 79B of the Act, as it is evident by a reading of the said conclusion. The Co-ordinate Benches of this Court previously have held such instances in favour of the Society.
4. Learned Counsel further hastens to add that there was enormous delay in initiating action for violation of Section 79B of the Act. As already held by this Court in W.A.No.8643/1996, disposed of on 09.02.1998 (M/s.Saroj Agencies Vs. State of Karnataka and Another) in a case of this nature, reasonable time to initiate action cannot be more than one year. In this case, proceedings were initiated after three years of the purchase. The Society was not required to seek permission for purchase of the land, since it is a coffee 7 plantation and provisions of the Act are not applicable. The observation of learned Single Judge that to claim the benefit under Section 63(7) of the Act, the purchaser must be an agriculturist and convince the authorities that he is carrying on agricultural operation is not supported by the statute. No such restrictions are forthcoming from Section 63(7) of the Act, even otherwise, if the land was left uncultivated for two consecutive years, separate action under Section 84 of the Act is contemplated. Till date, the Institution is managing the lands in question and there are fruit yielding trees apart from coffee plants on the land. The income from these lands is solely utilised for the benefit of the Society. There is no construction or building on this land. The order of the learned Single Judge has resulted in great injustice to the appellant, same is liable to be set aside and the order of the Karnataka Appellate Tribunal in Appeal No.363/2002 may be restored.
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5. Sri M.I.Arun, learned Additional Government Advocate for the respondents / State, strongly supported the orders passed by the Assistant Commissioner and the learned Single Judge.
6. We have heard both the parties and perused the orders under challenge, so also the orders of the Karnataka Appellate Tribunal. Under the given circumstances, the vexed question of law that arise for our consideration is -
"Whether the purchase of agricultural land by the registered Society running educational institute is hit by the provisions of Section 79 B of the Act?"
7. Firstly, the appellants are trying to take shelter under the premise that, in view of Section 104 of the Act, the provisions of Sections 64, 79A, 79B and 80 of 9 the Act are not applicable to the lands in question since they are coffee lands and Section 104 reads as under:
"104. Plantations: The provisions of section 38, section 63 other than sub-section (9) thereof, Ss.64, 79A, 79B & 80, shall not apply to plantations.
Explanation: In this section 'Plantation' means land used by a person principally for the cultivation of plantation crop and includes,-
(i) any land used by such
person for any purpose
ancillary to the cultivation of
such crop or for preparation
of the same for the market;
and
(ii) agricultural land
interspersed within the
boundaries of the area
cultivated with such crop by
such person.
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not exceeding such extent as may be
determined by the prescribed authority as necessary for the protection and efficient management of such cultivation".
But the benefit of Section 104 of the Act is not available to the Society for the simple reason that the Society is not registered as an owner under the provisions of Coffee Act. It is the mandate of Section 14 of Coffee Act, that an owner of the coffee plantation shall get registered his Coffee estate with the State Government in respect of the estate owned by him. The said provision reads thus:
"Section 14 of the Coffee Act reads as follows:
14. Registration of owners of coffee estates: [(1) Every owner of land planted with coffee plants, whether such land is comprised in one estate or in more than one estate and whether it is situated wholly or only partly in India, shall, before the expiration of the month from the date on which he first became owner of such estate or estates, apply to the 11 registering officer appointed in this behalf by the State Government to be registered as an owner in respect of each estate owned by him; and any registration made before the commencement of the Coffee (Amendment) Act, 1961 (48 of 1961), shall be deemed to have been made under this sub-section].
(3) A registration once made shall continue in force until it is cancelled by the registering officer."
8. The Assistant Commissioner being the primary fact finding authority has found that the lands-in- question has been classified in Survey Records as dry land and not as a plantation and on 01.03.1974, (commencement of amended Land Reforms Act) there was no coffee on the said lands. Wherefore, the benefit of Section 104 of the Act is taken away and not available to the Institution. Moreover, it is the State Government which has to exempt any land in a given area from the provisions of Sections 63, 79A, 79B or 80 12 of the Act by issuing notification. Admittedly, there is no such notification in respect of the lands-in-question. Though in the registered sale deeds, under which properties in question were purchased they are described as coffee plantations, as per the findings of the Assistant Commissioner there was no coffee plantation on the land as on 01.03.1974, on which date the amendment Act came into force. Other lands owned by this Society, have been exempted by the Government on the application moved by the Society. The Assistant Commissioner has passed remarks that having taken exemption in respect of survey Nos.158/1, 158/2, 158/3, 160, 159/2 and 178, totally measuring 11 acres 13 guntas, now the Institution cannot hold excess of land in view of Section 63(7)(a) of the Act.
9. The next phase of argument is, it is permissible for the Society to hold the land under Section 79B r/w. Section 63(7) of the Act, which Sections reads thus: 13
"Section 79B. Prohibition of holding agricultural land by certain persons:--(1) With effect on and from the date of commencement of the Amendment Act, except as otherwise provided in this Act,--
(a) no person other than a person cultivating land personally shall be entitled to hold land;
and
(b) it shall not be lawful for,
(i) an educational, religious or charitable institution or society or trust, other than an institution or society or trust referred to in sub- section (7) of section 63, capable of holding property;
(ii) a company;
(iii) an association or other body of individuals not being a joint family, whether incorporated or not; or 14
(iv) a co-operative society other than a co-operative farm, to hold any land.
(2) Every such institution, society, trust, company, association, body or co-operative society,--
(a) which holds lands on the date of commencement of the Amendment Act and which is disentitled to hold lands under sub-section (1), shall within ninety days from the said date, furnish to the Tahsildar within whose jurisdiction the greater part of such land is situated a declaration containing the particulars of such land and such other particulars as may prescribed; and
(b) which acquires such land after the said date shall also furnish a similar declaration within the prescribed period.
15(3) The Tahsildar shall, on receipt of the declaration under sub-section (2) and after such enquiry as may be prescribed, send a statement containing the prescribed particulars relating to such land to the Deputy Commissioner who shall, by notification, declare that such land shall vest in the State Government free from all encumbrances and take possession thereof in the prescribed manner.
(4) In respect of the land vesting in the State Government under this section an amount as specified in section 72 shall be paid.
Explanation.--For purposes of this section it shall be presumed that a land is held by an institution, trust, company, association or body where it is held by an individual on its behalf".
"Section 63(7)(a) of the Karnataka Land Reforms Act: No educational, religious or charitable institution or society or trust, of a public nature, capable of holding property, 16 formed for an educational, religious or charitable purpose shall hold land except where the income from the land is appropriated solely for the institution or the society or the trust concerned. Where the land is so held by such institution, society or trust, the ceiling area shall be twenty units."
10. From a joint reading of the above provision, it is clear that, Section 79B of the Act does not prohibit holding agricultural property by the Institutions which are referred under Section 63(7) of the Act. But Section 63(7) of the Act, is about ceiling limit on the Institutions which are capable of holding agricultural property. The phrase 'capable of holding property' is not explicitly defined anywhere under the Act. In that view of the matter, the logical inference is the 'Holding' of which, exemption is provided under the Act itself. While Section 104 of the Act, exempts plantations from provision of Section 63 of the Act, other than Sub- Section (9) thereof Sections 64, 79A, 79B and 80 of the 17 Act, Section 109 exempts certain lands from certain provision, which reads as under:
"Section 109 of the Land Reforms Act, 1961: Certain lands to be exempt from certain provisions - [(1) Subject to such rules as may be prescribed and the provisions of the Karnataka Town and Country Planning Act, 1961 (Karnataka Act No.11 of 1963), the State Government may, by notification, exempt, any land in any area from the provisions of Sections 63, 79-A, 79-B or 80 to be used for,-
Provided that the Deputy Commissioner may also, exercised the powers of the State Government under the sub-section, subject to the restrictions and in the manner specified therein, in respect of the land to be used for,-
(i) Industrial development, the extent of which shall not exceed ten units;
(ii) Educational institutions recognized by the State or Central Government to be used of non-agricultural 18 purpose, the extent of which shall not exceed two units;
(iii) Places of worship to be specified by Government by notification which are established or constructed by a recognized or a registered body for nonagricultural purpose, the extent of which shall not exceed one fourth of a unit.
(iv) a housing project, approved by the State Government the extent of which shall not exceed ten units;
(v) the purpose of horticulture including floriculture and agro based industries the extent of which shall not exceed ten units.]
(vi) industrial development, the extent of which shall not exceed ten units;
(1-A) notwithstanding anything
contained in sub-section (1), the State
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Government may in public interest and for reasons to be recorded in writing, [by notification and subject to the provisions of the Karnataka Town and Country Planning Act, 1961 (Karnataka Act No.11 of 1963) and such restrictions and conditions as may be specified by it, exempt any extent of land from the provisions of Sections 63, 79-A, 79-B or 80] for any specific purpose.] [Provided that [the Deputy Commissioner other than the Deputy Commissioner of Bangalore Rural District and the Deputy Commissioner of Bangalore District, may] subject to the restrictions and the manner specified in this sub-section exercise the power of the State Government to grant exemptions to an extent not exceeding half hectare of land.] (2) Where any condition or restriction specified in the Notification under sub-section (1), has been contravened, the [State Government or as the case may be, the Deputy Commissioner may,] after holding an enquiry as [it or he deems fit], cancel the 20 exemption granted under that sub-section and the land in respect of which such cancellation has been made, shall, as penalty be forfeited to and vest in the State Government free from all encumbrances. No amount is payable therefor.] Relevant Rule pertaining to exemption under Karnataka Land Reforms Rule reads thus:
"Rule 38B reads as follows:
38B. Conditions and Guidelines for grant of exemption under Section 109. - (2)(a) Exemption under Section 109, for the purpose of Education Institutions, may be granted on the recommendation of the Deputy Commissioner within whose local limits of jurisdiction the educational institution is situate or in the case of a branch of such institution, such branch institution is situate;
(b) While making recommendations for exemption the committees specified in clause
(a), shall be guided by.-21
(i) the Zonal regulations annexed to the comprehensive development plan or outline development plan under the Karnataka Town and Country Planning Act, 1961 (Karnataka Act 11 of 1963);
(ii) the suitability of the land for the proposed purpose;
(iii) the necessity and extent of land required keeping in view the nature and size of the Institution.
Explanation.- For the purpose of this sub- rule the term "Educational Institution" shall include a Hostel or a Vocational Educational Institution".
Rule 38(C): Conditions and guidelines of exemption under sub-
section(1-A) of Section 109: (1) Grant of exemption under sub-section (1-A) of Section 109 shall, depending on the purpose for which the exemption is granted, be in conformity with Rule 38-B, so far as they are 22 not inconsistent with the general provisions of these rules.
(2) All exemptions under these rules shall be granted subject to clearance by High Power Committee headed by the Chief Secretary, constituted under Government Order No.CI 88 SPF 95, dated 4.11.1995 or such other orders made in this behalf from time to time.
(3) The High Power Committee while giving clearance to the project under this rule shall ensure, depending on the purpose for which exemption is sought, that the general conditions laid down under Rule 38-D are also satisfied"..
11. Only such of the educational institutions which are recognised by the Government (State or Central), so holding the land for non-educational purpose can get the benefit of exemption. Exemption is not contemplated about holding of agricultural land by the Society. The purchase of property subsequent to 23 01.03.1974, on which date amendment to the Act came into force is not saved by the Amended Act. Even otherwise, it is not their case that their Memorandum of Association / Byelaws contemplates purchase of agricultural land by the Society. Section 63 (7) of the Act, by itself is not an enabling provision. It is about the ceiling on land holding and procedure in the event the Society deviates the agricultural income under it's holding without appropriating the same for the benefit of the Society. In that view of the matter, there need not be any confusion in understanding who is that Institution/Society/Trust capable of holding property, as appearing in either at Section 79 B or Section 63(7) of the Act. The Society herein does not qualify to 'capable of holding of agricultural property' anywhere under the Act and the view taken by the Assistant Commissioner and the learned Single Judge of this Court is proper and correct not calling for interference. 24
12. The learned Single Judge has gone in detail from paragraph Nos.10 to 12 of his judgment regarding the term 'holding' and has evolved the finding that 'Holding and Keeping' means by doing the agricultural activities as an agriculturist and utilizing it's entire income for the Institution itself. This finding is well founded and judicious not allowing any remarks. The sale transaction is of 1989 and the proceeding is initiated within three years of purchase. There is no inordinate delay. As such, the Act does not stipulate time limit to initiate action under Section 79 B of the Act. The authorities relied by the appellants in the appeal memo have no semblance to the facts involved in the present case. Hence, the learned Single Judge is justified in quashing the order passed by the Karnataka Appellate Tribunal dated 02.09.2002 in Appeal No.363/2002, by confirming the order passed by the second respondent / Assistant Commissioner dated 30.05.2002 in Case 25 No.LRF(83)164/2001-02. Therefore, we are not inclined to interfere with the order passed by the learned Single Judge.
Accordingly, the appeal is dismissed.
Sd/-
JUDGE Sd/-
JUDGE nvj