Karnataka High Court
Pamela Lakshminarayana And Ors. vs Kamalamma And Ors. on 30 August, 2002
Equivalent citations: ILR2002KAR4614, 2002(6)KARLJ182, 2002 AIR - KANT. H. C. R. 3024, 2002 AIHC 4933 (2002) 6 KANT LJ 182, (2002) 6 KANT LJ 182
Author: N.S. Veerabhadraiah
Bench: N.S. Veerabhadraiah
ORDER N.S. Veerabhadraiah, J.
1. This is the owners' revision being aggrieved of the order passed by the Land Reforms Appellate Authority, Mysore in LRF/MYS/Appeal No. 53 of 1988, dated 26-11-1988 dismissing the appeal by confirming the order of the Land Tribunal, Mysore in KLR No. 1700/74-75 vesting the land with the Government under Section 44 of the Land Reforms Act, 1961.
2. The brief facts of the case are as follows.--One Sri Hariyachar was the owner of the lands of different survey numbers situated at Varuna, Janthagalli and Dandikere Village of Mysore Taluk, called as Varuna Estate. In respect of the lands, the tenant namely, Sri R. Chinnaswamy Goundar filed Form 7 for grant of occupancy claiming to be the tenant. But, much prior to the filing of Form 7, Lakshminarayana S/o. Hariyachar initiated legal proceedings for resumption of land under Section 29 of the Mysore Tenancy Act, 1952. The litigation between the owner and the tenant which commenced during 1961 came to an end by an order of resumption in favour of Lakshminarayana in Case No. TC:163/60-61, dated 6-2-1974. While it is so, the Land Tribunal in KLR No. 1700/74-75 by its order dated 23-9-1981 ordered for grant of occupancy to the extent of 54 acres and vesting the remaining extent of land of Varuna Estate. The Land Tribunal, by its order dated 17-9-1981 posted the case to 23-9-1981 for pronouncement of the order. Immediately, the landlord approached this Court in W.P. No. 20351 of 1981 seeking for a writ of prohibition to the Land Tribunal not to proceed with the consideration and disposal of the application made by the respondent. This Court, by an order dated 22-9-1981 granted an interim order restraining the Land Tribunal from proceeding with the disposal of the application. Despite the order of this Court, the Tribunal pronounced its order allowing the application of the tenant on 23-9-1981 granting occupancy to the extent of 54 acres and resuming the remaining extent in favour of the State. That various orders of the Land Tribunal, Tahsildar, Mysore Taluk and the Assistant Commissioner between the tenant and the landlord were questioned before this Court. Therefore, all the matters were taken up together by the Division Bench of this Court in W.P. Nos. 1078 of 1975, 5824 of 1978 and 20351 of 1981 with W.A. No. 828 of 1985. After considering the matter at length, the Division Bench of this Court disposed off all the litigations by a common order dated 16-12-1985 with certain observations as mentioned in para 68 and remanded the matter for fresh disposal with a direction to bring the L.Rs of the tenant Chinnaswamy Goundar on record. The Land Tribunal, Mysore took up the matter for fresh disposal and the L.Rs of Chinnaswamy Goundar namely, Smt. Kamalamma, the wife, as well as the daughters Saraswathi residing at Dandikere, Mysore Taluk and another daughter Smt. R. Rajeshwari W/o. Vajra residing at New Bam-bubazar, Mysore were brought on record. It appears that the L.Rs of Chinnaswamy Goundar filed an application under Section 151 of the CPC with an affidavit of Smt. Kamalamma, dated 12-10-1987 praying permission to withdraw the petition as not pressed. The Land Tribunal after considering the contentions of the landlord held, in view of Section 44 of the Land Reforms Act and also in the light of the orders passed by the Division Bench, the tenants have lost their right for grant of occupancy. Accordingly, ordered for the vesting of the land to the State to the extent of 99 acres 33 guntas in various survey numbers situated at Varuna Village, Dandikere Village and Janthagalli Village called as "Varuna Estate". The landlord questioned the order of the Land Tribunal "vesting of land" before the Land Reforms Appellate Authority in LRF/MYS/Appeal No. 53 of 1988. The Appellate Authority dismissed the appeal by its order dated 26-11-1988 confirming the order of the Land Tribunal. It is this order which is now questioned by the landlord in this revision.
3. The learned Counsel Sri Joshi for the landlord/revision petitioner vehemently contended that when once the tenants have withdrawn the claim, the question of vesting of the land with the State does not arise. That apart, even before pronouncing an order by the Land Tribunal, dated 23-9-1981 this Court granted an interim order of stay on 22-9-1981. Therefore, the matter kept open for considering the rights of tenancy which was not adjudicated by the Tribunal earlier. Even otherwise, the order dated 23-9-1981 has become infructuous as an interim order granted in W.P. No. 20351 of 1981. Secondly, contended that from the impugned order of the Land Tribunal as well as Appellate Authority, it is not forthcoming what actually the extent of land that was under cultivation by the tenant and whether the land in question was actually under cultivation or left fallow. Therefore, without there being a proper enquiry and local inspection of the spot, the order of the Land Tribunal, as well as the order of the Appellate Authority vesting of the land with the State is erroneous and not sustainable. It is also contended that the owner Lakshminarayan and his father Hariyachar have put up construction of the farmhouse and they have also dug borewell and installed pumpset. The constructed area of the farmhouse, cannot be the subject-matter of tenancy and that the Land Tribunal has not inspected the spot at all. Lastly, contended that the lands were left fallow. Therefore, without cultivating the land that an application for grant of occupancy is not maintainable. That apart, the tenant cannot claim occupancy in respect of the uncultivated land. It is on account of the default of payment of rent, damaging the property, sub-leasing the property and leaving the land fallow much earlier to 1961 itself, the landlord initiated proceedings for resumption of the land under the Mysore Tenancy Act, 1952. The order of resumption passed in case No. 163/60-61, dated 6-2-1974 has been confirmed by the Division Bench of this Court. This makes clear that the tenants were never cultivating. Therefore, the order of the Land Tribunal as well as the Appellate Authority vesting of the land is not sustainable. The learned Counsel Sri Joshi further contended that the application filed by the L.Rs of Chinnaswamy Goundar for withdrawal of their claim is of no consequence as the possession of the lands were taken in pursuance of the eviction order dated 6-2-1974. When the tenants have not justified their claim, and having left the land fallow, it is erroneous on the part of the Land Tribunal to order vesting of the land with the State. On these grounds, the learned Counsel Sri Joshi prayed to set aside the order of the Land Tribunal as well as the Appellate Authority.
4. The learned Government Pleader Sri Narayanappa for the State justified the order of the Land Tribunal as well as the order of the Appellate Authority contending that the tenant has filed Form 7 as provided under Section 48-A of the Land Reforms Act. It is clearly held that the land in question is a tenanted land. Therefore, merely because of the reason that the tenants have filed an application to withdraw their claim shows that the land automatically vests with the State by virtue of Section 44 of the Land Reforms Act as the land in question is a tenanted land as on 1-3-1974. Secondly, contended that the L.Rs cannot take up any other plea than what has been taken by the deceased Chinnaswamy Goundar. Therefore, on this ground also if any application is filed by the L.Rs, it will not ensure for the benefit of the landlord, therefore, the land vests with the State. Accordingly, prayed to dismiss the revision.
5. The respondents though served remained unrepresented.
6. In the light of the submission, the points for consideration that arise:
"(1) Whether the Land Tribunal has provided sufficient and reasonable opportunity to the landlord before passing an order of vesting of land?
(2) Whether the order of the Land Tribunal, Mysore as well as the order of the Appellate Authority suffer from infirmities and thereby call for interference. If so, what orders?"
7. The Division Bench of this Court in Lakshminarayana Hariyachar v. Divisional Commissioner, while remanding the matters, passed an order with the following observations at para 68 which is extracted below:
"68. In the light of our above discussion, we make the following orders and directions:
(a) We dismiss W.P. No. 5824 of 1978. (b) We declare that the respondent-R. Chinnaswamy Goundar was in lawful possession of'Varuna Estate' as a tenant as on 1-3-1974. (c) We declare that in execution of the order in T.C. No. 163 of 1961 the respondent has been dispossessed from Varuna Estate on 25-4-1974 and its possession has been delivered to the petitioner on that day and that on and from that day the petitioner was in possession of the same and not the respondent.
d. We quash the order of the Commissioner dated 24-2-1975 in case No. R.A. 4/74-75 (Exhibit D in W.P. No. 1078 of 1975). But, our quashing the said order and the declaration made by us at sub-para (c) supra does not prevent the Tahsildar from disposing of T.C. No. 2 of 1974 on its own merits and granting the same also in accordance with law.
(e) We quash the order of the Land Tribunal in case No. KLRM 1700/74-75, dated 23-9-1981 (Annexure-B in W.P. No. 20351 of 1981) and direct the Land Tribunal to restore the application made by the respondent to its original file, first take steps to bring the legal representatives of the landlord, since deceased, then dispose of the same on recording all such evidence that may be placed by both sides duly considering all questions that may be urged by them in accordance with law and the observation's made in this order.
(f) We allow W.A. No. 828 of 1985, reverse the order of Bopanna, J. and dismiss W.P. No. 8275 of 1984 filed by the respondent".
It is clear from the order of the Division Bench that it has upheld the order of resumption and also taking of possession on 25-4-1974. In this regard, the Division Bench has observed at para 42 as follows:
"42. On the foregoing discussion, we hold that the respondent has been dispossessed from Varuna Estate on 25-4-1974 and that on and from that date he is not in possession of the same and that it is open to him to seek for restitution or restoration of possession in accordance with law before the Tahsildar for which he has already made a separate application, under the Land Reforms Act".
This shows that liberty has been granted to the tenant for seeking restitution of the possession irrespective of the order that has to be passed by the Land Tribunal. It is well-settled principles that when once it is found that it is a tenanted land as on 1-3-1974, it vest with the State by virtue of the enactment. The Division Bench by setting aside the grant of occupancy in favour of the tenant dated 23-9-1981 remanded the matter, for fresh disposal. However, the Division Bench has held that Chinnaswamy Goundar was in lawful possession as a tenant as on 1-3-1974. While considering the contentions, the matter came to be remanded with an observation at para 56 as follows:
"56. We are also of the view that the Tribunal has not afforded full and fair opportunity to both sides to place their evidence and had not considered all such questions that arose for determination before it like the nature of the lands, the extent to which the respondent was entitled for conferment of occupancy rights under the Land Reforms Act. We are also of the view that the order of the Tribunal which is in violation of the principles of natural justice and is not a speaking order is liable to be quashed and a direction issued to redetermine the application of the respondent".
Though there is a specific direction by the Division Bench of this Court, no opportunity was provided to the landlord to lead evidence in support of their claim. It is also to be borne in mind that the tenants have not filed any application for restoration of possession though liberty is granted. The said facts have not been considered by the Land Tribunal as well as the Appellate Authority.
8. It is the well-established principles that the landlord can initiate legal action against the tenant in case of breach of conditions of tenancy. In the present case, the legal proceedings for resumption of the land came to be initiated under the Mysore Tenancy Act, 1952. Section 15 of the Act provides for termination of tenancy which thus reads:
"15. (1) Notwithstanding any agreement, usage, decree or order of a Court of law, the tenancy of any land held by a tenant shall not be terminated, unless such tenant,
(a)(i) has failed to pay the rent of such land for any year; or.. .
(b) had done any act which is destructive or permanently injurious to the land;
(c) has sub-divided the land;
(d) has sub-let the land or failed to cultivate it personally;
(e) has left the land fallow".
On going through the entire records of the Land Tribunal, the tenant namely, Chinnaswamy Goundar has not produced any RTC extract in respect of the land for which he was actually cultivating. In order to come to the conclusion as to what extent the tenant was cultivating, it has to be evidenced from the entries found in the revenue records. Unless those records are made available or the Land Tribunal makes spot inspection and verification of the entries in the revenue records, it is rather difficult to hold what was the actual extent of land under cultivation by the tenant. That apart, there is no finding by the Land Tribunal or by the Land Reforms Appellate Authority to show what was the actual extent of land that was under cultivation by the tenant and whether the said lands still remained as agricultural lands in order to grant occupancy. The position of law is well-settled that it is in respect of agricultural lands under cultivation by a tenant as on 1-3-1974, the question of granting occupancy arises. The Land Tribunal by its order dated 12-5-1988 ordered for vesting of the following extent of lands measuring in all 99 acres 33 guntas:
Village Survey No. Extent Varuna Village 70 5 acres 10 guntas 73 6 acres 39 guntas 74: 1 3 acres 20 guntas 74: 2 6 acres 74: 3 2 acres 213 2 acres 214 2 acres Dandikere Village 80 19 guntas 80 5 acres 33 guntas 80 5 guntas 82 3 acres 5 guntas 82 4 guntas 91 5 acres 15 guntas 91 10 guntas 91 4 guntas 92 25 guntas 92 2 acres 12 guntas 92 4 guntas 93 1 acre 24 guntas 95 2 acres 16 guntas 96 : 1 25 guntas 96 : 1 1 acre 4 guntas 96 : 1 16 guntas 96 : 2 24 guntas 96 : 2 1 acre 27 guntas 96 : 2 1 acre 7 guntas 96 : 3 28 guntas Janthagalli Village 49 : 1 2 acres 3 guntas 49 : 2 2 acres 8 guntas 49 : 3 2 acres 20 guntas 50 : 2 1 acre 51 : 1 2 acres 8 guntas 51 : 2 2 acres 15 guntas 52 4 acres 25 guntas 53 : 1 3 acres 53 : 2 1 acre 17 guntas 59 4 acres 24 guntas 60 4 acres 26 guntas 61 2 acres 21 guntas 208 10 acres Total 99 acres 33 guntas The Division Bench of this Court has held that Chinnaswamy Goundar was a tenant, despite has not declared to what extent, he was the tenant. Therefore, it is the exclusive jurisdiction of the Land Tribunal to consider the matter as to in respect of what extent Chinnaswamy Goundar was cultivating the land, whether such land remained as agricultural lands or last its characteristics of agricultural land. The records of the Land Tribunal as well as the evidence of Smt. Kamalamma W/o. Chinnaswamy Goundar shows that certain extent of land have also left fallow. From the impugned order it is not coming out what is the actual extent of land that was under cultivation of Chinnaswamy Goundar. It is the Land Tribunal alone which is competent to consider and hold whether a person is entitled for grant of occupancy or not? And also to find out the details of the land which was under cultivation. It is only after holding that the land is tenanted by the Tribunal, the question of vesting of the land with the State arises. But the Division Bench has held the land in question are tenanted. Therefore, it is the duty of the Land Tribunal to find out the total extent of agricultural land that were under cultivation of the tenant as on 1-3-1974. It is relevant to note that the Division Bench has also held that taking possession of the property on 25-4-1974 in pursuance of the order in T.C. No. 163 of 1961 is upheld which fact has not been considered by the Land Tribunal. If the Land Tribunal were to found that the lands were to have lost the characteristics of agricultural land, such land cannot be vested for disposal as provided under Section ` of the Land Reforms Act.
9. In view of the fact that sufficient opportunity have not been provided to the landlord and also the Land Tribunal having not considered the genuineness of the application filed by the L.Rs for withdrawing their claim I feel that it is a fit case to remit back the matter for fresh disposal in accordance with Rule 17 of the Karnataka Land Reforms Rules, 1974 and to comply with the observation contained at para 56 of the judgment of the Division Bench as follows:
"56. We are also of the view that the Tribunal has not afforded full and fair opportunity to both sides to place their evidence and had not considered all such questions that arose for determination before it like the nature of the lands, the extent to which the respondent was entitled for conferment of occupancy rights under the Land Reforms Act. We are also of the view that the order of the Tribunal which is in violation of the principles of natural justice and is not a speaking order is liable to be quashed and a direction issued to redetermine the application of the respondent".
10. For the foregoing reasons, the revision is allowed. The order of the Land Tribunal in K.L.R. No. 1700/74-75, dated 12-5-1988 as well as the order of the Appellate Authority in No. LRF/MYS/A/53 of 1988, dated 26-11-1988 are hereby set aside with a direction to provide opportunity to both the parties. The Land Tribunal is directed:
(1) to conduct spot inspection and to find out the actual extent of land in possession of the parties;
(2) to find out the actual extent of land that was under cultivation of the tenant with reference to the entries in the revenue records i.e., RR and RTC;
(3) to take into consideration the order passed by the Tahsildar, dated 6-2-1974 in T.C. No. 163/60-61; and (4) the order of remand is confined only to the extent of 93 acres 33 guntas and to dispose off the matter in accordance with law.
Office is directed to transmit the records to the concerned Land Tribunal, as well as the Deputy Commissioner, Mysore for further action in the matter.