Karnataka High Court
Veena N Shetty vs The State Of Karnataka on 18 July, 2022
Author: N.S. Sanjay Gowda
Bench: N.S. Sanjay Gowda
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18th DAY OF JULY, 2022
BEFORE
THE HON'BLE MR. JUSTICE N.S. SANJAY GOWDA
WRIT PETITION No.6087/2012 (LR)
BETWEEN:
1. VEENA N SHETTY
W/O NAGESH SHETTY
AGED ABOUT 61 YEARS
2. U.KISHORE SHETTY
S/O P VITTAL SHETTY
AGED ABOUT 59 YEARS
3. U.MANOJ SHETTY
S/O P VITTAL SHETTY
AGED ABOUT 57 YEARS
4. U.SUDHIR SHETTY
S/O P VITTAL SHETTY
AGED ABOUT 55 YEARS
5. U.SANDHYA SHETTY
W/O B VITTAL SHETTY
AGED ABOUT 52 YEARS
6. U.SRIDHAR SHETTY
S/O P VITTAL SHETTY
AGED ABOUT 49 YEARS
7. U.SHASHIDHAR SHETTY
S/O P VITTAL SHETTY
AGED 46 YEARS
2
8. U.MURALIDHAR SHETTY
S/O P VITTAL SHETTY
AGED ABOUT 43 YEARS
ALL THE PETITIONERS ARE
R/OF DOOR NO.7-2-13,
VADIRAJ MUTT ROAD,
UDUPI
... PETITIONERS
(BY SRI.AJITH ANAND SHETTY FOR
SRI.A. ANAND SHETTY, ADV.)
AND:
1. THE STATE OF KARNATAKA
DEPT. OF REVENUE
REPRESENTED BY ITS SECRETARY
M.S. BUIDLING, K.R. CIRCLE,
BANGALORE
2. THE LAND TRIBUNAL
UDUPI
BY ITS SECRETARY
3. SRI PALIMAR MUTT
UDUPI
REPRESENTED BY ITS MANAGER
SRI VIDYAMANYA THIRTHA SWAMIJI
UDUPI
4. SRI PUTHIGE MUTT
UDUPI
REPRESENTED BY ITS MANAGER
UDUPI
... RESPONDENTS
(BY SRI.R. SRINIVASA GOWDA, AGA FOR R1 & R2
SRI.KESHAVA BHAT ADV. FOR
SRI.S.K. ACHARYA, ADV. FOR C/R-3
SRI.C.M. NAGABHUSHAN, ADV. FOR R4)
3
THIS PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
THE ORDER DATED 30.12.2011 PASSED BY THE 2ND
RESPONDENT WHICH IS PRODUCED AS ANNEXURE-M AND
ETC.
THIS PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 23.06.2022, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
1. This petition is filed by the tenant challenging the rejection of her Form No.7.
2. Smt.Girija Shedthi, the tenant, filed an application seeking for conferment of occupancy rights in respect of the land bearing Sy.No.97/2 measuring 43 cents, situate at Shivalli village, Udupi Taluk.
3. By an order dated 28.02.1977, the Land Tribunal conferred occupancy rights in her favour since there was a consent by the land owner. She claimed that she was a tenant under Sri.Palimar Mutt (for short "the Mutt"). This order was set aside by this Court in Writ Petition 4 No.22774 of 1980 and the matter was remitted to the Land Tribunal.
4. On remand, the Land Tribunal, by order dated 02.05.1989, proceeded to reject the claim of the tenant, which lead to the filing of Writ Petition No.28658 of 1991 by the tenant. This Court by order dated 30.06.1997 set aside the order of rejection and remanded the matter for the second time to the Land Tribunal with a direction to the Land Tribunal to consider the rent receipts and the chalageni chits produced by Smt.Girija Shedthi.
5. Pursuant to the said order, the Land Tribunal took up the matter for inquiry and by the impugned order, has rejected the application of the tenant basically on two grounds:
Firstly, on the ground that the applicant who had filed Form No.7 was not an agriculturist and she was working as a primary school Teacher and secondly, on the ground that the applicant had not proved that there 5 was an agricultural tenancy, having regard to the fact that the land contained a residential house, which was assessed to property tax by the Municipal Council.
6. The learned counsel for the petitioners basically contended that the possession of the petitioners was not in dispute and yet the Land Tribunal had rejected the tenant's claim. He highlighted the fact that the Manager of the Mutt, who had deposed on behalf of the Mutt, had admitted that there was a chalageni chit executed by the Mutt itself at Ex.R-1 and Ex.P-1, which clearly established that an agricultural land was leased to Smt.Girija Shedthi.
7. He submitted that the chalageni chit indicated that there was an annual lease and the tenant was required to pay a sum of Rs.48/- apart from 360 coconuts. He sought to contend that since the rent payable was in terms of the coconuts, it was clear that it was an agricultural tenancy, especially when it was in dispute that there were several coconut trees on the land. 6
8. He also submitted that there was a second chalageni chit issued in the year 1962 which also stated that rent was to be paid in terms of cash and in terms of coconuts and this term of payment of rent in terms of coconuts conclusively proved that it was a lease of an agricultural land and therefore, it was impermissible for the landlord to contend that there was no agricultural tenancy or that the land was not agricultural.
9. Sri.Keshava Bhat, learned counsel for the landlord, however, contended that the evidence on record clearly established that the land in question was not an agricultural land. He stressed upon the fact that the tenant was working as a primary school Teacher and she could not have taken the property on lease for agricultural activities. He also contended that the land was situated within a few furlong off the main road in Udupi and the house found in the land having been assessed to tax, it could never be contended that the land was an agricultural land.
7
10. He also submitted that in the Malabar region, it was common practice for small extent of lands to be leased which contained residential accommodation, accompanied by a few trees and this Court in a series of decisions had held that such leases could never be construed as an agricultural lease. He laid emphasis on the fact that the dominant nature of the lease will have to be examined and the Land Tribunal having examined the material meticulously and after conducting a spot inspection has come to the conclusion that that the land in question was not an agricultural land and therefore the order of the Land Tribunal could not be found fault with and at any rate, the order could not be interfered with in exercise of this Court's writ jurisdiction under Articles 226 and 227 of the Constitution of India.
11. It is an undisputed fact that there were chalageni chits executed in favour of Smt.Girija Shedthi--one in the year 1954 and another in the year 1962. The Manager of the Mutt had clearly admitted that a 8 chalageni chit had been issued to Smt.Girija Shedthi. The chalageni chit of the year 1954 which was produced by the Mutt itself (Ex. R-1-dated 26.09.1954) reads as under:
" ||²æà gÁªÀÄZÀAzÀæB ²æÃB|| ¸Àé¹Ûà ²æêÀÄzÀÄqÀĦ£À ²æÃ¥sÀ°ªÀiÁgÀĪÀÄoÀzÀ ²æòæÃgÁªÀÄZÀAzÀæzÉêÀgÀ ¨sÀAqÁgÀzÀ C¢ü¥ÀwUÀ¼ÀÄ ²æêÀAzÀæªÀ®è¨sÀwÃxÀð ²æà ¥ÁzÀAUÀ¼ÀªÀjUÉ, ¸À£ï 1954£Éà E¸À« ¸À¥ÀÛA§gÀ wAUÀ¼À 26£Éà vÁjÃQUÉ ¸ÀjAiÀiÁzÀ dAiÀÄ ¸ÀAªÀvÀìgÀzÀ ¨sÁzÀæ¥ÀzÀ §ºÀļÀ ®Äè Grà vÁ®ÆèPÀÄ £ÀA§æ 77£Éà ²ªÀ½î UÁæªÀÄzÀ ªÀiÁgÀ°ÃvÉÆÃl ¥ÀÄlÖªÀÄä ±ÉrÛ ªÀÄUÀ¼ÀÄ Vjd ±ÉrÛAiÀÄÄ §gÀPÉÆlÖ ZÁ®UÉÃt JzÀÄgÀÄ£ÀÄr PÀæªÀĪÉAvÉAzÀgÉ-
vÀªÀÄä ¸ÀA¥ÀÆtð ºÀQÌ£À ¨Á§ÄÛ PɼÀªÉ «ªÀj¹gÀĪÀ D¹Û ªÀUÉÊgÉAiÀÄ£ÀÄß vÀªÀÄä PÀqɬÄAzÀ £Á£ÀÄ dAiÀÄ ¸ÀAªÀvÀìgÀzÀ MAzÀÄ ªÀgÀĵÀzÀ ¸ÁUÀĪÀ½î §UÉå ªÀiÁvÀæ ZÁ®UÉÃtÂUÉ ªÀ»¹PÉÆArgÀÄvÉÛãÉ. D §UÉå vÀªÀÄUÉ dAiÀÄ ¸ÀAªÀvÀìgÀPÉÌ PÉÆqÀĪÀgÉ ªÉÆPÀÆægÀÄ ªÀiÁr £Á£ÀÄ M¦àPÉÆAqÀ UÉÃt £ÀUÀzÀÄ gÀÆ¥Á¬Ä 48-00 £À®ªÀvÉÛAlÄ, vÉAV£ÀPÁå, 360 ªÀÄÄ£ÀÆßgÀ CgÀªÀvÀÄÛ ªÀiÁvÀæ DVgÀÄvÀÛzÉ. ¸ÀzÀj UÉÃtÂAiÀÄ£ÀÄß dAiÀÄ ¸ÀA|gÀzÀ PÁwðPÀ §.30gÀ £ÀAvÀgÀ ªÀiÁWÀ §.30gÀ ªÀ¼ÀUÉ vÀªÀÄUÉ vÀªÀÄä GqÀĦ ªÀÄoÀPÉÌ AiÀiÁ vÁªÀÅ ºÉüÀĪÀ°èUÉ £À£Àß Rað¤AzÀ ¸ÁV¹ vÀAzÀÄ PÉÆlÄÖ ¸ÀAzÀzÀÝPÉÌ gÀ²Ã¢ ¥ÀqÀPÉÆAqÉãÀÄ. ¸ÀzÀj UÉÃtÂAiÀÄ£ÀÄß ªÁÊzÉ ¥ÀæPÁgÀ PÉÆqÀzÉ ¨ÁQ ªÀiÁrPÉÆAqÀgÉ ¨ÁQ ªÀiÁrPÉÆAqÀ £ÀUÀzÀÄ LªÉÃfUÀÆ, fãÀ¸ÀÄUÀ¼À PÁ®zsÁgÀuÉ PÀæAiÀÄPÉÌ PÀÆqÁ ªÁåzÉ ¯ÁUÁAiÀÄÄÛ ªÀ¸ÀÆ®Ä ªÀgÉÃUÉ ¸Á°AiÀiÁ£ï ¸ÉÃPÀqÁ 6-4-0gÀ ¸À¯É §rØ 9 PÀÆr¹ vÁªÀÅ PÉýzÁUÉå PÉÆmÉÖãÀÄ. ¸ÀzÀj D¹ÛAiÀÄ°è £Á£ÀÄ ¨É¼É¬Ä¸ÀĪÀ ¸ÀªÀĸÀÛ ¥ÉÊgÀÄ ¥sÀ¸À®ÄUÀ¼À£ÀÄß AiÀiÁªÀ «zsÀ¢AzÀ®Æ ¥ÀgÁ¢üãÀ ªÀiÁqÀ°PÉÌ £À£ÀUÉ ºÀQÌ®è. EzÀPÉÌ «gÉÆÃzsÀªÁV ªÀiÁrzÀ ¥ÀgÁ¢üãÀUÀ¼ÀÄ ªÀÄAdÆgÀÄ DUÀvÀPÀÌzÀÝ®è. £Á£ÀÄ F ªÀÄÆ®PÀ UÉÃtÂUÉ ªÀ»¹PÉÆAqÀ D¹ÛAiÀÄ£ÁßUÀ°Ã-AiÀiÁ- CzÀgÀ JµÀÖ£ÁßzÀgÀÆ CA±ÀªÀ£ÀÄß ¸ÀºÁ £ÀªÀÄä M¼ÀUÉ ¨ÉÃgÉAiÀĪÀjUÉ ¸ÁUÀĪÀ½îUÉ PÉÆqÀ°PÉÌ £À£ÀUÉ ºÀQÌ®è. UÉÃt ªÀ¸ÀÆ° ¨Á©£À°è d¦Û ªÀÄÄAvÁzÀÝgÀ «µÀAiÀĪÁV DAiÀiÁAiÀÄ PÁ®zÀ°è eÁjAiÀÄ°ègÀĪÀ PÁ£ÀÆ£ÀÄ ¥ÀæPÁgÀ vÀªÀÄä PÀqɬÄAzÀ £Àr¸ÀĪÀ J¯Áè ªÀåªÀºÀgÀuÉUÀ½UÉ £Á£ÀÄ §zÀÞ¼ÁVAiÀÄÆ UÀÄjAiÀiÁVAiÀÄÆ EzÉÝãÉ. £Á£ÀÄ ¨É¼É¬Ä¸ÀĪÀ ¥ÉÊgÀÄ PÀmÁ«£À ªÀÄÄAZÉ UÉÃt §UÉå eÁ«ÄãÀÄ PÉÆqÀ¨ÉÃPÉAvÀ vÀªÀÄä PÀqɬÄAzÀ PÉýzÀ°è AiÉÆÃUÀåªÁzÀ eÁ«ÄãÀÄ PÉÆlÄÖ DAiÀiÁAiÀÄ PÁ®zÀ ¥ÉÊgÀÄ PÀmÁªÀÅ ªÀiÁrAiÉÄãÀÄ. vÀ¦àzÀ°è vÀªÀÄä UÉÃtÂUÉ ¸ÁPÁUÀĪÀµÀÄÖ ¥ÉÊgÀÄ vÀªÀÄä PÀqɬÄAzÀ PÀmÁ¬Ä¸ÀĪÀ°è DPÉëæ¸À°PÉÌ £À£U À É ºÀQÌ®è. ¸À¢æ D¹ÛAiÀÄ°è £À£Àß ºÀQÌ£À ªÀ £Á£ÀÄ ªÀiÁrgÀĪÀ PÀÈvÀUÀ¼ÉãÀÆ EgÀĪÀÅ¢®è. E£ÀÄß ªÀÄÄAzÉ vÀªÀÄä §gÀºÀ ªÀÄÆ®PÀzÀ C£ÀĪÀÄw «£ÀºÁ PÀÈvÀ ªÀiÁqÀ°QÌ®è. EzÀPÉÌ «gÉÆÃzsÀªÁV ªÀiÁrzÀ PÀÈvÀzÀ JµÀÖ£ÁßzÀgÀÆ ¥Àæw¥sÀ® vÀ«ÄäAzÀ §gÀ¨ÉÃPÉAzÀ ºÉüÀ°PÉÌ £À£ÀUÉ ºÀQÌ®è. FUÀ EgÀĪÀ ¥ÀÆgÁ PÀÈvÀUÀ¼ÀÄ vÀªÀÄä ºÀQÌ£ÀzÉÝà DVgÀÄvÀÛªÉ. CªÀÅUÀ¼À£ÀÄß PÁ¥Ár¸ÀĪÀÅzÀÄ F UÉÃt PÁAmÁæQÖUÉ M¦àzÁÝ¢æAzÀ CªÀÅUÀ¼À£É߯Áè AiÉÆÃUÀåjÃw¬ÄAzÀ PÁ¥ÁqÀ°PÉÌ £Á£ÀÄ §zÀÞ¼ÀÄ. ¸À¢æ D¹ÛAiÀÄ°ègÀĪÀ ªÀÄgÀªÀÄlÄÖUÀ¼À£ÀÄß PÀrAiÀÄ°PÁÌUÀ°Ã D¹Û CgÀÆ¥À ¥Àr¸À°PÁÌUÀ°Ã £À£ÀUÉ ºÀQÌ®è. UÉÃtÂUÉ PÁgÀtªÁzÀ D¹Û ªÀÄ£É ªÀÄÄAvÁzÀÝ£ÀÄß CUÀvÀå©zÁÝUÉå vÀªÀÄä PÀqɬÄAzÀ drÛ ªÀiÁr £ÉÆÃqÀĪÀ°è DPÉëæ¸À°PÉÌ £À£ÀUÉ ºÀQÌ®è. EzÀgÀ AiÀiÁªÀÅzÁzÀgÉÆAzÀ ±ÀvÀð ªÀÄvÀÄÛ ªÁZÀPÀPÉÌ ¸ÀºÁ £Á£ÀÄ vÀ¦à £ÀqÉzÀÄ vÀªÀÄUÉ £ÀµÀÖ ¥Àr¹zÀ°è vÀªÀÄUÁUÀĪÀ ¸ÀPÀ® £ÀµÀÖ vÉgÀ°PÉÌ £Á£ÀÄ §zÀÞ¼ÀÄ. EzÀgÀ UÉÃt 10 ªÀUÉÊgÉ J¯Áè «zsÀzÀ ¸ÀAzÁAiÀÄPÀÆÌ ¸À¢æ D¹ÛAiÀÄ°è £Á£ÀÄ ¨É¼É¬Ä¸ÀĪÀ ¸ÀªÀĸÀÛ ¥sÀ®¥ÉÊgÀÄUÀ¼ÀÄ, CªÀÅUÀ½AzÀ gÉÃSÉ ªÀiÁqÀ®àqÀĪÀ ¸ÀPÀ® zÀªÀ¸ÀzsÁ£ÀåUÀ¼ÀÄ ¸ÀºÀ ¥ÀæxÀªÀÄ dªÁ¨ÁÝjAiÀiÁVgÀĪÀÅzÀ®èzÉ ¸À¢æ ¸ÀAzÁAiÀÄPÉÌ £À£Àß ¸ÀPÀ® ¸ÉÆvÀÄÛUÀ¼ÀÄ ªÀÄvÀÄÛ £Á£ÀÄ ¸ÀévÀºÀ ¸ÀºÁ dªÁ¨ÁÝjAiÀiÁVgÀÄvÉÛãÉ. ªÀPÀ̮ĪÁrPÉ C£ÀĸÀj¹ ¨É¼ÉPÁtÂPÉ PÉÆlÄÖ ©nÖ¨ÉÃUÁj ªÀiÁr EzÀgÀ J¯Áè ±ÀvÀðUÀ½UÀ£ÀĸÀj¹ vÀªÀÄUÉ «zsÉÃAiÀļÁV £ÀqÀPÉÆAqÀÄ ¸À¢æ D¹Û ªÀUÉÊgÉ ¸ÀªÁð¢AiÀÄ£ÀÄß ¸Á©Ãw¤AzÀ ¸ÀA¥ÀÆtðªÁV £ÉÆÃnøÀÄ PÉÆqÀ°®èªÉA§ DPÉëÃ¥À ºÉüÀzÉ dAiÀÄ ¸ÀAªÀvÀìgÀzÀ ¥sÁ®ÄÎt §.30PÉÌ vÀªÀÄUÉ ©lÄÖPÉÆqÀ°PÉÌ £Á£ÀÄ ¸ÀA¥ÀÆtð §zÀÞ¼ÁVgÀÄvÉÛÃ£É JAvÀ ¸ÀºÀ §gÀPÉÆlÖ ZÁ®UÉÃt JzÀÄgÀÄ£ÀÄr.
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G¥À vÀºÀ¹Ã¯ÁÝgÀ ¨sÀÆ ¸ÀÄzsÁgÀuÉ ±ÁSÉ, vÁ®ÆèPÀÄ PÀbÉÃj GqÀĦ "11
12. The second chalageni chit executed on 21.10.1962 was produced as Ex.P-1 by the tenant.
13. As could be seen from the chalageni chits, the following recitals are found:
"....... MAzÀÄ ªÀgÀĵÀzÀ ¸ÁUÀĪÀ½î §UÉå ªÀiÁvÀæ .......£ÀUÀzÀÄ gÀÆ¥Á¬Ä 48-00 £À®ªÀvÉÛAlÄ, vÉAV£ÀPÁå, 360 ªÀÄÄ£ÀÆßgÀ CgÀªÀvÀÄÛ ........ ¸ÀzÀj D¹ÛAiÀÄ°è £Á£ÀÄ ¨É¼É¬Ä¸ÀĪÀ ¸ÀªÀĸÀÛ ¥ÉÊgÀÄ ¥sÀ¸À®ÄUÀ¼À£ÀÄß AiÀiÁªÀ «zsÀ¢AzÀ®Æ ¥ÀgÁ¢üãÀ ªÀiÁqÀ°PÉÌ £À£ÀUÉ ºÀQÌ®è. ....... £ÀªÀÄä M¼ÀUÉ ¨ÉÃgÉAiÀĪÀjUÉ ¸ÁUÀĪÀ½îUÉ PÉÆqÀ°PÉÌ £À£ÀUÉ ºÀQÌ®è. .........£Á£ÀÄ ¨É¼É¬Ä¸ÀĪÀ ¥ÉÊgÀÄ PÀmÁ«£À ªÀÄÄAZÉ UÉÃt §UÉå eÁ«ÄãÀÄ PÉÆqÀ¨ÉÃPÉAvÀ vÀªÀÄä PÀqɬÄAzÀ PÉýzÀ°è AiÉÆÃUÀåªÁzÀ eÁ«ÄãÀÄ PÉÆlÄÖ DAiÀiÁAiÀÄ PÁ®zÀ ¥ÉÊgÀÄ PÀmÁªÀÅ ªÀiÁrAiÉÄãÀÄ. ...... ¸À¢æ D¹ÛAiÀÄ°ègÀĪÀ ªÀÄgÀªÀÄlÄÖUÀ¼À£ÀÄß PÀrAiÀÄ°PÁÌUÀ°Ã....."
(Extracted portion)
14. This makes it clear that it was an agreed term between the parties that the tenant was entitled to cultivate the land and raise crops. This term clearly indicates that the lease was an agricultural lease. The fact that there was a specific bar to permit any other 12 person to cultivate the land also proves that it was an agricultural tenancy.
15. It has to be stated here that the annual rent fixed was a sum of Rs.48/- in cash and rendering of 360 coconuts. This term which obligated the tenant to give 360 coconuts for cultivating the land is clear proof of the fact that it was an agricultural lease. The further fact that the lease was for one year also establishes that it is an agricultural lease. This annual lease which basically enabled the tenant to cultivate the land for one year and thereafter pay the annual rent in part by cash and in part by giving agricultural produce (360 coconuts) is itself sufficient to come to the conclusion that there was an agricultural lease in existence between the petitioner and the contesting respondent, which is a religious institution.
16. It is also to be stated here that there were two chalageni chits, viz., one of the year 1954 and the other, of the year 1962 and both are annual leases and were 13 each for a period of one year. These chalageni chits also indicate that the land in question had been leased to the tenant right from 1954. In other words, the admitted chalageni chits which were nearly ten years apart establish that the land was an agricultural land and the tenant was cultivating the land for a considerable period of time.
17. In the chalageni chit of the year 1962, the underlined portions (supra) also indicate that the tenant was to pay annual rent of Rs.48/- in cash and also to give 360 coconuts. The expression " MAzÀÄ ªÀgÀĵÀzÀ ªÀåªÀ¸ÁAiÀÄ - ondu varshada vyavasaya " used in the chalageni chit of the year 1962 clearly establishes that the tenant had a right to cultivate the land for one year. The chalageni chit also uses the term " ªÀPÀÄè - vakklu" indicating that it was given for an agricultural purpose. The description of the property in the chalageni chit also indicates that a farm house along with a garden was the subject matter of the Chalageni, thereby meaning that an agricultural 14 land had been leased to the tenant. It is, therefore, clear that as per the very admitted Chalageni chits, the land in question was an agricultural land, which had been leased to the tenant for carrying on agricultural operations.
18. The Land Tribunal, however, without noticing the specific directions issued by this Court in Writ Petition No.28658 of 1991 to consider the rent receipts and Chalageni chit has erroneously come to the conclusion that the land in question was not an agricultural land and further, the tenant was working as a teacher and therefore, she should not be an agriculturist.
19. It has to be stated here that when the chalageni chits, which were admitted by the landlord, clearly indicated that an annual lease was created in favour of the tenant and as a rent, the tenant was required to pay a sum of Rs.48/- in cash and also give 360 coconuts, it cannot be denied that the lands were agricultural lands and had been leased for agricultural activities. 15
20. The Land Tribunal has basically ignored the contents of the chalageni chits and has gone on a tangential course and has arrived at the conclusion that the lands were not agricultural lands. As stated above, the chalageni chits produced by the Mutt itself clearly stated that the land was given for cultivation and the rent payable was not only Rs.48/- in cash but also in terms of giving 360 coconuts. The Tribunal, by ignoring these recitals in the chalageni chits has committed a severe illegality and it has placed reliance on irrelevant considerations, such as, the house existing on the land being assessed to tax, the tenant was a teacher, etc., and this has vitiated its order.
21. It has to be stated here that it is not uncommon in Mofussil areas for Teachers and other employees of an organization to not only discharge their duties under their respective employers, but also at the same time engage in agricultural activities.
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22. It is to be stated here that the Land Reforms Act itself defines the expression "to cultivate personally"
which means to cultivate the land on one's own account or by the labour of any member of one's family or even through hired labour. The fact that the tenant was working as a Teacher would not, by itself, lead to an inference that she was not cultivating the land personally as she could also cultivate the lands through her family members or even through hired labour. In fact, the Land Tribunal also stated that there was no bar for a Teacher to engage herself in agricultural activities.
23. The observation of the Tribunal that there was a house in the property which had been assessed to tax and there were three other houses which had also been leased out and therefore, the lands could not have been construed as agricultural lands, is also untenable, since the admitted chalageni chits under which the tenant was handed over possession of the lands, itself, in clear and categorical terms, stated that the land was being given 17 for cultivation and the tenant was required to not only pay rent but also pay a part of the produce by way of coconuts in the land that was realised from the coconut trees.
24. In my view, the entire approach of the Land Tribunal is incorrect and the Land Tribunal has misdirected itself which necessitates the interference of this Court under Articles 226 and 227 of the Constitution of India.
25. It is also to be stated here that the application was filed by the tenant in the year 1975-76 and the matter has been remanded thrice and despite three rounds of litigation, the matter is yet to reach a finality.
26. Having regard to the fact that the tenancy application is pending for more than almost fifty years, in my view, it would be appropriate to consider the materials on record and pass appropriate orders 18 regarding the claim of the tenant to achieve a finality to the issue.
27. In this view of the matter, the argument of the learned counsel for the petitioners that in exercise of this Court's supervisory jurisdiction, the matter cannot be examined, cannot be accepted at least in this case.
28. The learned counsel appearing for the Mutt also placed reliance on the judgment rendered by a Division Bench of this Court in Smt.Vanajakshi vs. Land Tribunal, Udupi and another, reported in ILR 1979 page 480, and also another decision rendered in W.P. No.21855 of 2004 [James D'Souza and another vs. The State of Karnataka and others] connected with W.P.27623 of 2004[LR] [Leena D'Souza and another vs. The State of Karnataka and others] by a Single Judge of a co-ordinate Bench, which was confirmed in Writ Appeal No.4652 of 2004. 19
29. In Smt.Vanajakshi's case, the Division Bench pointed out certain salient features of the premises in question in that case and one of the salient features pointed out by the Division Bench was that the tenancy of the premises was monthly and not an annual tenancy. It is clear from the judgment that the Lease Deed which was under consideration did not stipulate that the land was given for cultivation and the rent was not in terms of coconuts or crop share and was a monthly tenancy with the primary reason of letting out the house in the land, which also contained coconut trees.
30. Since, in this case, the chalageni chits specifically contemplate cultivation of the land by the tenant, and the payment of 360 coconuts every year and an annual rent of Rs.48/-, it is clear that the chalageni chits which are the subject matter of this writ petition, is completely different from the lease that was considered in Vanajakshi's case. The said judgment, therefore, has no application to the present case.
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31. In the case of James D'souza, which was confirmed by the Division Bench in W.A. No.4652 of 2004, it is noticed that the lease deed dated 01.04.1968 was produced and it is stated as follows:
"9. ..... The contention that the applicant was the tenant of the land had not been taken at the earliest opportunity available to the applicant in O.S.No.64/73 or O.S. Nos.129/73 or 131/73 and contention taken in O.S.No.64/73 was that the writ petitioners had become owners by adverse possession and the fact that there was a lease deed dated 1.4.68 and geni receipt dated 20.1.90 was not taken in the said suit and for the first time the contention was taken before the Tribunal contending that there was a lease deed dated 1.4.68 and that poultry farming is also done in the lands in respect of which occupancy right has been claimed and therefore, the Tribunal has not attached much importance to the said documents produced before the Tribunal. .... "21
32. As could be seen from the above, an assertion had been made in that case that under the lease deed, a poultry farming was also being run in that land. The lease deed which was considered by the Division Bench in that case, did not contain a Clause which contemplated cultivation as has been stipulated in the chalageni chits produced before this Court. In that view of the matter, the ratio laid down in James D'souza's case, would also have no application.
33. The reliance placed on the decision of the Division Bench rendered in W.A. No.15198 of 2011 cannot also come to the aid of the respondents since in that case, the land involved was only 71/2 cents and it was admitted that the applicant was working as a cook and the only document that he had produced was house property tax paid receipts and in that context, the Division bench held that the land involved therein could not be considered as land as defined under Section 2A(18) of the Act.
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34. As stated above, in this case, the rent was to be paid in terms of coconuts and cash and the recitals in the chalageni chits also establish that agricultural land had been granted for the purpose of cultivation.
35. It has to be stated here that "land" has been defined under Section 2(a)(18) of the Karnataka Land Reforms Act, 1961 and as per the said definition, even the land which is capable of being used for agricultural purposes has to be construed as an agricultural land. In the instant case, when the chalageni chits produced by the landlord themselves contemplate that the cultivation is required to be carried out by the tenant and 360 coconuts were to be given apart from the cash component of Rs.48/- every year, it would conclusively prove that it was an agricultural lease.
36. In the case of K.Kunhambu vs. Chandramma (smt.) and others, reported in (2004) 9 SCC 174, the Hon'ble Supreme Court was considering the case of tenancy, in which the Apex Court has held as follows: 23
"9. That apart, it could be seen from the definition of `Land' in the Act that though it comprehends in the first part land actually cultivated or cultivable, the latter exclusionary part of the definition, "but does not include house site or land used exclusively for non-
agricultural purposes" makes it abundantly clear that the actual and exclusive user for non-agricultural purposes, even the land otherwise cultivable or capable of being used for any purposes related to agriculture as enumerated therein, would stand excluded and fall outside the purview of the said definition in Section 2(A)(18) of the Act. When the land in question is itself not 'land' as defined for the purposes of the Act, there is no scope or room for falling back on the so-called object or aim of the legislation to extend the provisions of the Act to areas specifically left outside it against the express legislative mandate and will, policy and intention. In addition thereto, the facts specifically disclosed and categorically found by the High Court on the basis of the materials on record would equally belie the claim of the appellant being a 'tenant' as defined in Section 2(A)(34) of the Act."24
37. Thus, in order to establish that the land is incapable of being considered as land for the purposes of Section 2A(18) of the Act, it would be necessary to prove that the land was actually and exclusively leased for being used for non-agricultural purposes, even if the land was capable of being used for agricultural purposes. The landlord, in the present case, has not been able to establish this fact and the very chalageni chits produced by them clearly establish that the land was leased for the purposes of cultivation. In the result, I am of the view that the order of the Land Tribunal cannot be sustained and it is accordingly set aside.
38. In view of the findings recorded by me that Smt.Girija Shedthi had established that she was a tenant of the agricultural land bearing Sy.No.97/2 measuring 43 cents, situate at Shivalli village, Udupi Taluk, the Land Tribunal is directed to confer occupancy rights in her favour.
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39. The Writ Petition is accordingly allowed.
Sd/-
JUDGE RK CT:AN