Karnataka High Court
Sri Anthony Gomes vs State Of Karnataka on 18 June, 2019
Author: S.N.Satyanarayana
Bench: S.N.Satyanarayana
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF JUNE, 2019
BEFORE
THE HON'BLE MR.JUSTICE S.N.SATYANARAYANA
WRIT PETITION NO.8325 OF 2012 (LR)
BETWEEN:
SRI ANTHONY GOMES
AGED ABOUT 85 YEARS
S/O LATE ALEX GOMES
R/AT KAMUNDELU
YELLURU VILLAGE
KEMUNDELU 574 119.
... PETITIONER
(BY SRI. G. BALAKRISHNA SHASTRY, ADVOCATE)
AND:
1. STATE OF KARNATAKA
REPRESENTED BY ITS SECRETARY
DEPARTMENT OF REVENUE
VIDHANA SOUDHA, BENGALURU.
2. THE ADDITIONAL LAND TRIBUNAL
KAUP HOBLI UDUPI TALUK
REPRESENTED BY ITS PRESIDENT AND
SPECIAL ASSISTANT COMMISSINOER
LAND TRIBUNAL UDUPI.
3. SMT. SUSHEELA UDUPA
W/O. LATE SRIDHARA UDUPA
2
AGED ABOUT 78 YEARS
SANANJE HOUSE YELLUR VILLAGE,
AND POST, UDUPI TALUK
AND DISTRICT - 574 132.
... RESPONDENTS
(BY SMT. B.P. RADHA, AGA FOR R.1 & R.2;
SRI. VYASA RAO. K.S., ADVOCATE FOR C/R.3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE
THE ORDER DATED 27.12.2011 IN SO FAR AS THE REJECTION
OF THE CLAIM IN RESPECT OF S.NOS. 185/1 MEASURING 10-45
ACRES, 188/1A MEASURING 7-38 ACRES AND SL.NO.187/6
MEASURING 0-16 ACRES OF YELLUR VILLAGE OF UDUPI TALUK
AND TO DIRECT THE LAND TRIBUNAL TO GRANT THE SAME TO
THE PETITIONER.
THIS WRIT PETITION IS COMING ON FOR HEARING THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
This writ petition is by the tenant, who is applicant in LRY-104-170-TRI-574/80-81 on the file of the Land Tribunal, Udupi. Admittedly, the petitioner is the son of original tenant- Alex Gomes, who secured chalageni right from the original owner Ramakrishna Udupa in the year 1956. The said chalageni chit is in respect of various survey numbers of Yelluru Village, Udupi Taluk and District. The said chalageni 3 chit, which was issued in favour of the petitioner's father - Alex Gomes, is not in dispute.
2. In the meanwhile, there was partition between Ramakrishna Udupa and his children. The lands which are subject matter of this writ petition were allotted to the share of his son - Sridhara Udupa. The said Sridhara Udupa settled the aforesaid lands in favour of his wife -Smt.Susheela Udupa, who is the present landlord and respondent No.3 in this proceeding.
3. In the meanwhile, Alex Gomes died prior to 1967. Thereafter, the petitioner - Anthony Gomes was registered as the tenant in respect of the lands, for which his father had secured chalageni right. This was factual position prior to the appointed day of the amended provision of the Land Reforms Act which came into force in the year 1974. It is seen that an application in Form No.7 was filed by Sri Anthony Gomes on 18.9.1974 seeking occupancy rights in respect of several 4 lands, where he sought some of the lands which are not subject matter of the chalageni chit. Further, he would try to assert that said lands were also granted to his father for chalageni as seen in the legal notice which was sent to him through the lawyer of respondent No.3 somewhere in the year 1967, where some of the lands referred to in the notice are not seen in the chalageni chit. Admittedly, in the original proceedings, the landlord did not resist the tenancy rights in favour of the applicant in respect of lands, which were not the subject matter of chalageni chit of the year 1965.
4. It is in this background, the order dated 22.08.1981 was passed by the Land Tribunal, Udupi, granting occupancy rights in favour of the petitioner in respect of some of the lands. While doing so, the Tribunal in spite of there being an application seeking occupancy rights in respect of three items of land namely, Sy.Nos.187/6 measuring 16 cents, 181/4 measuring 48 cents and 186/2 5 measuring 3 acres 75 cents, has declined to grant the tenancy right in respect of said items while considering prayer for grant of occupancy rights to other items. While doing so, the Tribunal considered the tenancy rights in favour of the petitioner in respect of two items of land which were not subject matter of the chalageni chit of 1965, which are lands bearing Sy.No.185/1 measuring 10 acres 45 cents and Sy.No.188/1-A measuring 1 acres 68 cents.
5. The order of the Land Tribunal was subject matter of two writ petitions; one in Writ Petition No.8017/1982 which was filed by the tenant insofar as rejection of Sy.No.181/4 measuring 48 cents, Sy.No.187/6 measuring 16 cents and Sy.No.186/2 measuring 3 acres 75 cents and also with reference to rejection of his claim to a portion of land in Sy.No.188/1-A where his tenancy rights was considered by it for 1 acre 68 cents and rejected his 6 prayer to 5 acres 70 cents which was the subject matter of the writ petition.
6. However, another writ petition which was filed by the landlord in Writ Petition No.16057/1982 is with reference to grant of occupancy rights in respect of three items of land namely, 185/1 to an extent of 10 acres 45 cents, 188/1-A for 1 acre 68 cents and 185/3 to an extent of 3 acres 34 cents which are admittedly punja lands. Admittedly, the said writ petitions were transferred to the Land Reforms Appellate Authority
7. It is seen that the writ petition which was filed by the landlord in Writ Petition No.16057/1982 was sent to the Land Reforms Appellate Tribunal where it was registered as LRA 11/1988 and subsequently, sent to High Court where it was registered as CP No.1755/1991 and got converted into Writ Petition No.39427/2000. The said writ petition came to be allowed by order dated 1.3.2006 in remanding the matter 7 back to the Land Tribunal, Udupi for reconsideration. So far as the writ petition filed by the tenant in W.P. No.8017/1982 was not pursued before Land Reforms Appellate Authority.
8. Learned counsel for the petitioner herein, who was the respondent in the said proceeding, would state that he was under the bonafide belief that when the writ petition of landlord was allowed in remanding the matter back to land Tribunal, the same would be for consideration of not only the objections which were raised by the landlord with reference to grant of occupancy rights in respect of Sy.No.185/1 measuring 10 acres 45 cents, 188/1-A measuring 1 acres 68 cents and 185/3 measuring 3 acres 34 cents, but also with reference to the objection which was raised by the tenant in his writ petition which was not pursued for non-consideration of occupancy rights in respect of Sy.No.181/4 for 48 cents, 186/2 for 3 acres 75 cents, 187/6 for 16 cents and 188/1A for 5 acres 70 cents of lands.
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9. However, in the remanded matter, the Land Tribunal did not consider any of those items. All that was considered is prayer for rejection of occupancy rights in respect of Sy.185/1 measuring 10 acres 45 cents similarly, occupancy rights in respect of Sy.No.188/1A measuring 1 acres 68 cents on the ground that the said lands are punja lands.
10. According to learned counsel for petitioner - tenant, the impugned order of Land Tribunal is erroneous. Insofar as Sy.No.186/2 measuring 3 acres 75 cents and rejection of claim in respect of 185/1 measuring 10 acres 45 cents and 188/1A totally measuring 7 acres 38 cents are concerned, he would try to assert that the Land Tribunal ought to have considered the occupancy rights in their favour though it is considered that they are punja lands. 9
11. Heard the learned counsel for the petitioner and learned AGA for respondent Nos.1 and 2 and Sri.Vyasa Rao, learned counsel for caveator/respondent No.3.
12. On going through the order impugned and other material available on record, this Court is of the considered opinion that the order of the Land Tribunal appears to be just and proper insofar as punja lands are concerned. However, it has committed serious error in not reconsidering the claim of the tenant in respect of land bearing Sy.Nos.187/6 measuring 16 cents and Sy.No.181/4 measuring 48 cents when admittedly they are the lands covered under the geni chit of the year 1965 and the lands, which are under the cultivation of the petitioner as chalageni tenant. The Tribunal should not have refused to consider the same on the ground that the tenant did not pursue his writ petition in Writ Petition No.8017/1982, which was initially filed challenging the order of the Tribunal dated 22.08.1981 in not considering his 10 prayer for issuance of occupancy certificate in respect of land bearing Sy.Nos.187/6, 181/4 and not pursued the same before the Land Reforms Appellate Authority and thereafter, filing the civil petition before this Court. The presumption of the Land Tribunal that the proceeding in LRY No.104:170:TRI:574/80-81 was not remanded for reconsideration in its entirety and it is only in regard to the challenge of the landlord as raised in W.P.No.16057/12 and not in respect of all lands is erroneous. The Land Tribunal should have been diligent in considering the legal right of the tenant also insofar as these two properties are concerned.
13. Insofar as rejection of prayer for occupancy right in respect of land bearing Sy.Nos.185/1 measuring 10 acres 45 cents and Sy.No.188/1A measuring 7 acres 38 cents as well as Sy.No.186/2 measuring 3 acres 75 cents are considered, the said lands being punja lands granting occupying right in respect of said lands could not have been 11 considered even otherwise in the light of judgment rendered in the matter of *Subhakar and others -vs- *Harideesh Kumar and others, reported in 2007(5) Kar.L.J *359(SC), wherein the Apex Court has categorically stated that punja land cannot considered for grant of occupancy right as could be seen from the aforesaid judgment, which reads as under:
'8. Section 2(A)(18) of the Act reads as follows:-
"Land" means agricultural land, that is to say land which is used or capable of being used for agricultural purposes or purposes subservient thereto and includes horticultural land, forest land, garden land, posture land, plantation and tope but does not include house-site or land used exclusively for non-agricultural purposes."
9. A bare reading of the provision shows that land means agricultural land that is to say, land which is used or capable of being used for agricultural purposes or purposes subservient thereto and includes horticultural land, forest land, garden land, pasture land, plantation and tope but does not include house-site or land used exclusively for non- agricultural purposes. Therefore, it has to be established that the land was capable of being used for agricultural purposes or purposes subservient thereto. The Tribunal and the High Court have categorically noted the fact that the land *Corrected vide chamber order dated 17.08.2019 12 being punja land is not cultivable land and only grass is grown naturally. If the appellants wanted to establish that it was being used for agricultural purposes, evidence should have been led in that regard. The Division Bench has categorically noted that no evidence in that regard was led. Mere reference to the spot inspection to show the existence of a few coconut trees does not establish that the land was capable of being used for agricultural purpose.'
14. In addition to that, the said lands were not subjected to geni chit as tenanted land. There is no substantial material to demonstrate that the lands are under cultivation of the applicant before the Land Tribunal. At this juncture, this Court would also clarify that the legal notice which was issued to the petitioner through the learned counsel for the third respondent- Smt. Susheela Udupa mentioning the said lands in the notice, when admittedly they were not covered under the geni chit as tenanted land, would not create tenancy right to the petitioner. Therefore, the petitioner cannot draw any support based on such document to establish his alleged tenancy rights.
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15. With the above observations, this writ petition is disposed of directing the Land Tribunal, Udupi to pass necessary orders for issue of occupancy rights in respect of land bearing Sy.Nos.187/6 measuring 16 cents and 181/4 measuring 48 cents of Yelluru village, Udupi Taluk and District in favour of tenant - Anthony Gomes. While doing so, this Court would observe that the lands, which are subject matter of challenge in this writ petition which are punja lands namely, Sy.No.185/1 measuring 10 acres 45 cents, Sy.No.188/1A *measuring 7 acres 38 cents and Sy.No.186/2 measuring 3 acres 75 cents shall be considered as property of the landlord which were not the subject matter of the tenancy rights, besides that the said lands being punja lands, occupancy rights cannot be considered for these lands in favour of the petitioner.
Sd/-
JUDGE SA * Inserted vide Court Order dated 27.09.2019