Karnataka High Court
Lakshman vs The State Of Karnataka By Its Secy To Govt on 28 June, 2023
Author: S.Vishwajith Shetty
Bench: S.Vishwajith Shetty
-1-
NC: 2023:KHC-D:6447
WP No. 27103 of 2005
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 28TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR JUSTICE S.VISHWAJITH SHETTY
WRIT PETITION NO. 27103 OF 2005 (LR)
BETWEEN:
1. LAKSHMAN S/O RAMA RAGHOJICHE,
SINCE DECEASED BY HIS LR'S.
1(a) SMT. SOUNDRAYA W/O LAXMAN RAGHOCHE,
AGE. MAJOR, OCC. AGRICULTURE.
1(b) RAJARAM S/O LAXMAN RAGHOCHE,
AGE. MAJOR, OCC. AGRICULTURE.
1(c) GANAGRAM S/O LAXMAN RAGHOCHE,
AGE. MAJOR, OCC. AGRICULTURE.
1(d) ASHOK S/O LAXMAN RAGHOCHE,
AGE. MAJOR, OCC. SERVICE.
Digitally signed
by RAKESH S
HARIHAR
Location: High
2. MAHADEV S/O RAMA RAGHOJICHE,
RAKESH
S
Court of
Karnataka, SINCE DEAD BY HIS LR'S.
Dharwad
HARIHAR Date:
2023.07.04
11:04:32
+0530 2(a) VINOD S/O MAHADEV RAGHOJICHE,
AGED ABOUT 32 YEARS, R/O. NANDIHALLI,
TALUK & DIST. BELGAUM.
2(b) SUDHIR S/O MAHADEV RAGHOJICHE,
AGED ABOUT 23 YEARS, R/O. NANDIHALLI,
TALUK & DIST. BELGAUM.
2(C) SIDDRAY S/O MAHADEV RAGHOJICHE,
AGED ABOUT 30 YEARS, R/O. NANDIHALLI,
TALUK & DIST. BELGAUM.
-2-
NC: 2023:KHC-D:6447
WP No. 27103 of 2005
3. NINGAPPA S/O RAMA RAGHOJICHE,
AGE: MAJOR, OCC: AGRICULTURE,
R/O. NANDIHALLI VILLAGE,
TALUK & DIST. BELGAUM.
4. NAGAPPA S/O RAMA RAGHOJICHE,
SINCE DECEASED BY HIS LR'S.
4(a) SMT. BABY W/O NAGAPPA RAGHOCHE,
AGE. MAJOR, OCC. HOUSEHOLD.
4(b) RAMA S/O NAGAPPA RAGHOCHE,
AGE: MAJOR, OCC: AGRICULTURE.
4(a) UTTAAM S/O NAGAPPA RAGHOCHE,
AGE: MAJOR, OCC: AGRICULTURE.
4(a) AMRUTA D/O NAGAPPA RAGHOCHE,
AGE: MAJOR, OCC: NIL.
ALL ARE RESIDENTS R/O. NANDIHALLI VILLAGE,
TALUK & DIST. BELGAUM.
... PETITIONERS
(BY SRI. SUNIL S DESAI, ADVOCATE FOR P1(a-d) & R4(a-d);
SRI. C H JADHAV, ADVOCATE FOR P2(a-c) & R3)
AND:
1. THE STATE OF KARNATAKA,
BY ITS SECRETARY TO GOVERNMENT,
REVENUE DEPARTMENT, M.S. BUILDING,
BANGALORE-560001.
2. THE ASSISTANT COMMISSIONER,
BELGUAM SUB-DIVISION, BELGAUM.
3. RAMACHANDRA S/O RAMACHANDRA KITTUR,
SINCE DECEASED REPRESENTED BY HIS LR'S.
-3-
NC: 2023:KHC-D:6447
WP No. 27103 of 2005
3(a) VISHNU S/O RAMACHANDRA KITTUR,
SINCE DECEASED BY HIS LR'S.
3(a)(i) PRASAD S/O VISHNU KITTUR,
AGE. MAJOR, OCC. NOT KNOWN,
R/O. BUDAGAON, TQ. MIRAJ,
DIST. SANGLI-416304(MH).
3(a)(ii) PREETI W/O H SATTIGERI,
R/O. SHIVATEERTHA COLONY, PLOT NO.46,
M M EXTENSION, BELAGAVI.
3(b) RAMESH S/O RAMACHANDRA KITTUR,
SINCE DECEASED BY HIS LR'S.
3(b)(i) SHWETA D/O RAMESH KITTUR,
AGE. MAJOR, OCC. HOUSE WIFE,
R/O. F1/011 AND 012, TRIVENI-LOKGRAM,
CHS ITD KALAYAN EST,
DIST. THANE MAHARASTRA.
3(c)(ii) HEMA D/O RAMESH KITTUR,
AGE. MAJOR, OCC. ,
R/O. F1/011 AND 012, TRIVENI-LOKGRAM,
CHS ITD KALAYAN EST,
DIST. THANE MAHARASTRA.
3(c) MAHESH S/O RAMACHANDRA KITTUR,
AGE. MAJOR, OCC. NOT KNOWN,
R/O. 217/5, GANESH MARG, HINDWADI,
DIST. BELGAUM.
3(d) KAMALA W/O G KULKARNI,
AGE. MAJOR, OCC. HOUSE WIFE,
R/O. 217/5, GANESH MARG, HINDWADI,
DIST. BELGAUM.
3(e) RUPA W/O S KULKARNI,
AGE. MAJOR, OCC. HOUSE WIFE,
R/O. H.NO. 217/5H, GANESH MARG 3, HINDWADI,
BELAGAVI-11.
-4-
NC: 2023:KHC-D:6447
WP No. 27103 of 2005
4. SMT. GIRIJA W/O BALACHANDRA KITTUR,
SINCE DECEASED REPRESENTED BY HIS LR'S.
4(a) DATTAPRASAN S/O BALACHANDRA KITTUR,
AGE. MAJOR, OCC. AGRICULTURE.
4(b) SUNITA W/O N NAIK,
AGE. MAJOR, OCC. HOUSE WIFE.
4(c) RENUKA W/O V TAVILDAR,
AGE. MAJOR, OCC. HOUSE WIFE.
ALL ARE RESIDENTS OFF: R/O. C/O. N.S NAIK,
GULMOHAR COLONY, BHAGYA NAGAR, 9TH CROSS,
DIST. BELGAUM.
5. SRI. HANAMANT S/O NARSIMHA KITTUR,
SINCE DECEASED REPRESENTED BY HIS LR'S.
5(a) UMA KITTUR,
AGE. MAJOR, OCC. HOUSE HOLD,
R/O. H.NO. 217/5H, GANESH MARG 3, HINDWADI,
BELAGAVI.
5(b) DATTRAYA S/O HANAMANT KITTUR,
AGE. MAJOR, OCC. NOT KNOWN,
R/O. H.NO. 217/5H, GANESH MARG 3, HINDWADI,
BELAGAVI.
5(c) NEETA W/O R PATKI,
AGE. MAJOR, OCC. HOUSE HOLS,
R/O. SUNJAR APARTMENT 'PRADNYA BUILDINGS'
NEAR BHAGINI, NIVEDITA KARVE NAGAR, PUNE.
6. SMT. MALATHI W/O JEEVANRAO KITTUR,
SINCE DECEASED REPRESENTED BY HIS LR'S.
6(a) ARAVIND S/O JEEVANRAO KITTUR,
AGE. MAJOR, OCC. NOT KNOWN.
6(b) RAJENDRA S/O JEEVANRAO KITTUR,
AGE. MAJOR, OCC. NOT KNOWN.
-5-
NC: 2023:KHC-D:6447
WP No. 27103 of 2005
BOTH ARE RESIDENTS OFF: R/O. "KEDAR"
NEAR NTTF, RAM NAGAR, 3RD CROSS , DHARWAD.
6(c) SANGEETA W/O R NAIK,
AGE. MAJOR, OCC. HOUSEWIFE,
R/O. 'ANUGRAHA CLINIC',
POST. DEVAR HIPPARGI, DIST. VIJAYPUR.
6(d) GEETA W/O R DESHPANDE,
AGE. MAJOR, OCC. HOUSEWIFE,
R/O. NEAR GANDHI CHOUK,
POST & TALUK. MUDALAGI,
DIST. BELAGAVI.
... RESPONDENTS
(BY SRI. VINAYAK S KULKARNI, AGA FOR R1 & R2 ;
SRI. SURABHI KULKARNI, ADVOCATE FOR R3(a)(i),
R3(a)(ii), R3(b)(i), R3(b)(ii), R3(c-e) & R6(a-d))
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
ISSUE A WRIT, ORDER OR DIRECTION, IN THE NATURE OF
CERTIORARI, QUASHING THE ORDER DATED 30.12.2004
PASSED BY THE KARNATAKA APPELATE TRIBUNAL IN APPEAL
NO.535/2003 (BELGAUM CAMP) PRODUCED AT ANNEXURE-C.
THIS PETITION, COMING ON FOR FURTHER ARGUMENTS,
THIS DAY, THE COURT MADE THE FOLLOWING:
-6-
NC: 2023:KHC-D:6447
WP No. 27103 of 2005
ORDER
1. This writ petition is filed by the petitioners assailing the order at Annexure-C dated 30.12.2004 passed by the Karnataka Appellate Tribunal (for short, 'the KAT') in appeal No.535 of 2003.
2. Heard the learned counsel for the parties.
3. Facts leading to filing of this writ petition are; the predecessor of the petitioners Rama Lakshman Nagojiche was a protected tenant of the lands bearing Sy.No.273 measuring 15 acres 39 guntas and Sy.No.271 measuring 2 acres 29 guntas situated at Nandihalli village of Belagavi Taluk and District. The entries in the revenue records of the lands in question stood in the name of the said Rama Lakshman Nagojiche right from the year 1948 onwards till the year 1971 and after the death of the original tenant, the entries continued in the name of the petitioner's father. In a proceeding initiated under the provisions of the Karnataka Land Reforms Act, 1961 (for short, 'the Act of 1961') for surrender of the lands in -7- NC: 2023:KHC-D:6447 WP No. 27103 of 2005 question, the Land Tribunal had passed an order on 17.06.1969 in respect of 8 acres of land in Survey No.273 and pursuant to the said order, the entries in respect of the lands in question were transferred in the name of the landlords as per the orders passed in proceeding bearing M.E.No.3070. It is the case of the petitioners that, though such an order was passed by the Tribunal, the lands in question were not surrendered to the landlords and tenants continued in possession and cultivation of said lands as and 01.03.1974 and even immediately prior to said date. However, they had not filed Form No.7 claiming occupancy rights of the lands in question. Thereafter, on 10.02.1992, petitioners had entered into an agreement for sale with the respondent-landlords for sale consideration of Rs.2,50,000/- and under the agreement for sale, the petitioners allegedly had paid a total sum of Rs.1,55,000/- to the respondent-landlords. However, thereafter respondent-landlords had not executed the sale deed in favour of the petitioners. After coming into force of Section 77-A of the Act of 1961, the petitioners had filed Form -8- NC: 2023:KHC-D:6447 WP No. 27103 of 2005 No.7-A dated 21.12.1998 with a prayer to register them as occupants of the lands in question. The Competent Authority vide order Annexure-A had allowed the claim of the petitioner Nos.2 to 4 and had registered them as the occupants of the lands in question. Being aggrieved by the said order at Annexure-A dated 16.12.2002, respondent- landlords had filed an Appeal before the KAT in appeal No.535 of 2003, which was allowed by the Tribunal on 30.12.2004. Challenging the same, the petitioners are before this Court.
4. Learned counsel for the petitioners submits that the Appellate Tribunal had erred in setting aside the well considered and reasoned order passed by the Competent Authority. He submits that there is absolutely no material to show that the lands which are subject matter of Form No.7-A were surrendered by the tenants in favour of the landlords. He submits that the subject matter of surrender order was only 8 acres of land in Sy.No.273 and in spite of the same, the landlords had managed to get the revenue -9- NC: 2023:KHC-D:6447 WP No. 27103 of 2005 records changed in their names in respect of entire extent of 18 acres 28 guntas in the lands in question. He submits that after coming into force of the Act No.1 of 1974, the Competent Authority had passed an order under Section 44 of the Act of 1961 on 02.12.1974, holding that the lands in question vested with the State Government. He submits that all these aspects of the matter have not been appreciated by the Appellate Authority. In support of his arguments, he has placed reliance on the following judgments:
i. State of Karnataka and Ors. Vs.Uppegouda and Ors. reported in (1997) 3 SCC 593 ii. Puttegowda Vs.State of Karnataka and others reported in AIR 1980 Karnataka 102 iii. Shri.Mallappa Bhimanna Katti Vs.The Land Tribunal, Sindagi and Others reported in ILR 1979 Karnataka 1937
5. Per contra, learned counsel appearing for the respondent-landlords submits that Appellate Tribunal has recorded a finding that the lands in question had not vested with the State, on the basis of the earlier orders
- 10 -
NC: 2023:KHC-D:6447 WP No. 27103 of 2005 passed by the Land Tribunal, wherein the claim made by other tenants in respect of the very same land, was considered and rejected by the Land Tribunal. She submits that Form No.7-A could be maintained only in respect of the lands which had vested in the State under Section 44 of the Act of 1961 and not otherwise. In support of her arguments, she has placed reliance on the judgment of the Full Bench of this Court in the case of Lokayya Poojary and Another Vs.State of Karnataka and Others reported in ILR 2012 Kar 4345. She also submits as per the admitted documents, it is very clear that the possession was handed over subsequent to the order of surrender passed by the Competent Authority and thereafter the revenue records were changed in the name of the landlords, which were undisputedly not questioned by the petitioners. Accordingly, she prays to dismiss the writ petition.
- 11 -
NC: 2023:KHC-D:6447 WP No. 27103 of 2005
6. I have given my anxious consideration to the arguments addressed on both the sides and also perused the material record.
7. Undisputedly, the lands in question were originally tenanted lands and petitioners' predecessor one Sri. Rama Lakshman Nagojiche was a protected tenant and his name was entered in the revenue records of the lands in question, wherein, he was referred to as protected tenant. After his death, said entries was continued in the name of the petitioners' father. The records would reveal that the entries in the revenue records of the lands in question stood in the name of Rama Lakshman Nagojiche and thereafter entered the names of petitioners' father right from 1948 to 1971. It is on the strength of the order of surrender passed by the Competent Authority, the revenue entries in respect of the lands in question was changed in the name of the landlords in the year 1971 as per the order passed in proceeding bearing ME No.3070.
- 12 -
NC: 2023:KHC-D:6447 WP No. 27103 of 2005
8. The material on record would go to show that the order of surrender was passed only in respect of 8 acres of land in Sy.No.273. However, entries in revenue records earlier standing in the name of the tenants, in respect of entire extent of land in Sy.Nos.273 and 271, was changed in the name of the landlords, though surrender was in respect of only 8 acres of land in Sy.No.273. The material on record would go to show that after coming into force of the Act No.1 of 1974, the Competent Authority has passed an order in proceedings bearing No.3306 exercising his power under Section 44 of the Act of 1961, holding that the lands in question stood vested with the State Government. This order dated 02.12.1974 remains unchallenged till date.
9. The Competent Authority while considering Form No.7-A filed by the petitioners, has referred to the said order. However, it appears that the Appellate Tribunal has not considered the order of vesting which was passed on 02.12.1974. The Appellate Tribunal has proceeded to
- 13 -
NC: 2023:KHC-D:6447 WP No. 27103 of 2005 record a finding that the lands which were subject matter of claim in Form No.7-A did not stand vested with the State Government, on the basis of the earlier orders passed by the Land Tribunal in the proceedings which were initiated on the basis of the claim made by some other tenants in respect of the very same lands.
10. The Hon'ble Supreme Court in the case of Uppegouda and Ors. (supra) at paragraph 10 has observed as follows:
"10. In this case, the land holder has merely asserted that the tenant had surrendered the land and entries in revenue records were received in support thereof. It is easy to have the entries made with the assistance of patwari who had exclusive custody of the records. The object of the Tenancy Act is to protect the tenants to remain in possession and enjoy it subject to compliance of the provisions of the Tenancy Act. Contracted tenancy come to an end and statutory tenancy sets in operation and so he would be liable for ejectment only on proved grounds of statutory contravention, the entries of
- 14 -
NC: 2023:KHC-D:6447 WP No. 27103 of 2005 revenue records are self serving. There was no order of a competent authority of eviction of tenant for contravention of the above mentioned grounds. The proviso, though enables a landlord to obtain possession on surrender, it must be proved strictly, as several devices would be used to circumvent the beneficial provision and illiteracy and ignorance of the tenant would be taken advantage of. There is no proof of eviction of the tenant. The stand taken by the land- holder is not supported by legal setting. The High Court committed grave error of low. Accordingly the judgment of the High Court is not correct in law and stands set aside."
11. In the case of Shri Mallappa Bhimanna Katti (supra), the Division Bench of this Court at paragraphs 12 and 13 has observed as follows:
"12. In Ranga Rao Rama Rao Deshpande vs. Channappa Basappa, Sadananda Swamy, J. (as he then was), said that if during the continuance of a lease, the lessee enters into an agreement with the lessor for purchase of the demised premises, the right of the lessee under the lease does not merge with the right that he
- 15 -
NC: 2023:KHC-D:6447 WP No. 27103 of 2005 may have acquired under such agreement of sale. The same view was taken by Lodha, J. (as he then was), in Banshilal vs. Noor Mohamad, His Lordship observed that a lease cannot be said to have been determined merely by execution of an agreement to sell as it is well known that by mere execution of an agreement to sell, there is no transfer of interest in the property. We are in agreement with the views expressed in these cases.
13. In the present case, the lease executed by respondent No.2 in favour of the petitioner on 24.03.1964 was a valid lease. By a series of enactments made by the Legislature commencing from the Karnataka Tenants Temporary Projection from Eviction Act, 1961 culminating in the L.R. Act, the rights of the tenants to continue in occupation of the leasehold agricultural lands have been protected and therefore the petitioner has continued to be in possession of the land as a tenant of respondent No.2 as on 01.03.1974 which is also the finding of fact recored by the Tribunal. Before the Tribunal, the only legal contention that was urged by respondent Nos.2 and 3 was that the leasehold rights or tenancy rights had
- 16 -
NC: 2023:KHC-D:6447 WP No. 27103 of 2005 merged on the execution of the agreement to sell dated 06.06.1966 which we have found to be not legally sustainable. Except for this, respondent Nos.2 and 3 did not raise any other objection that requires to be investigated and decided by the Land Tribunal for granting occupancy rights to the petitioner. For these reasons, we are of the opinion, rejection by the Tribunal of the claim of the petitioner for being registered as occupant was, manifestly erroneous. We, therefore, allow the petition, quash the order dated 22.04.1976 of the Land Tribunal in Case No.KLR.SR.19, and remit the case to the Land Tribunal to decide it afresh in accordance with law and in the light of our above observations."
12. In the case of Puttegowda (supra) at paragraph 7, this Court has observed as follows:
"7. The learned single Judge relied on Maneksha Ardeshir v. Manekji Edulilji Mistry and S. 44(1) of the Act in support of his finding that the order of surrender determined the relationship of landlord and tenant. We will take up Section 44(1) of the Act first.
- 17 -
NC: 2023:KHC-D:6447 WP No. 27103 of 2005 Sub-section (1) of Section 44 of the Act reads:
'Vesting of land in the State Government - (1) All lands held by or in the possession of tenants (including tenants against whom a decree or order for eviction or a certificate for resumption is made or issued) immediately prior to the date of commencement of the Amendment Act, other than lands held by them under leases permitted under Section 5, shall, with effect on and from the said date, stand transferred to and vest in the State Government."
It enumerates the types of land that vest in the State Government as on 1-3-1974. The learned single Judge has found that the lands not surrendered notwithstanding the permission to surrender, do not find a place in Section 44(1) and so such lands are not tenanted lands for granting occupancy rights tinder Section. 45 of the Act. In our view, the words "lands held by"
(Underlining by us) are wide enough to cover lands not surrendered in spite of permission to do so but in possession of the tenant immediately before 1-3-1974, and therefore, the construction put on Section 44(1) the learned single Judge, does not appear to us to be
- 18 -
NC: 2023:KHC-D:6447 WP No. 27103 of 2005 correct. Even the decision of the Supreme Court under the Bombay Tenancy and Agricultural Lands Act referred to above, does not support the view taken by the learned single Judge. That 'was not a, case in which tenant continued to be in possession of the land after obtaining permission to surrender. The deletion of Section 25 as it stood then by Amendment Act 1 of 1974. Without providing for a saving clause for the operation of surrender orders obtained by landlords under the earlier provision lends supports by the tenant does not put an end to the relationship of landlord and tenant.
Further, it may also be noticed that under Section 111 of the T. P. Act, tenancy of immoveable property is determined, inter alia, by express surrender, that is to say, in case the lessee yields up his interest under the lease to the lessor, or, by implied surrender.
As stated in Halsbury's Laws of England Volume 23 (3rd Edn.) at page 635, delivery of possession by the tenant to the landlord and his acceptance of possession, are essential to effect the surrender. In the present case, it has not been proved that the appellant had delivered
- 19 -
NC: 2023:KHC-D:6447 WP No. 27103 of 2005 possession of the land notwithstanding grant of permission to surrender- As we have found that the appellant was in possession even after the grant of permission to surrender, he must be held to have continued to be a tenant and was entitled to grant of occupancy right, and therefore the question of remand also does not arise."
13. The question whether pursuant to an order of surrender, there was an actual surrender of the land by the tenants was not considered either by the competent authority or by the appellate authority. The judgment in the case of Lokayya Poojary and another on which reliance has been placed by the learned counsel for the respondent-landlords would not be of any aid to this case, because in the present case, there is a material available on record evidencing that the lands which were subject matter of the claim in Form No.7A stood vested in the State. The order of vesting passed by the competent authority on 02.12.1974, which is available on record is not questioned by anybody till date. Therefore, it cannot
- 20 -
NC: 2023:KHC-D:6447 WP No. 27103 of 2005 be said that there is no material to show that the lands which are subject matter of claim in Form No.7A, stood vested with State with effect from 01.03.1974.
14. The Appellate Authority has set aside the order passed by the competent authority placing reliance on certain earlier orders passed by the Land Tribunal, wherein a finding is recorded that the lands in question had not vested with the State. However, the order of vesting which was passed on 02.12.1974 in proceedings bearing M.E. No.3306 was not considered by the appellate tribunal. Similarly, the competent authority had not considered the earlier findings recorded by the Land Tribunal which were referred to by the appellate tribunal. The question whether the lands in question were actually surrendered to the landlords pursuant to the order of surrender requires to be considered in the matter and therefore, I am of the view that the order impugned passed by the appellate tribunal needs to be set aside and the matter has to be remitted to
- 21 -
NC: 2023:KHC-D:6447 WP No. 27103 of 2005 the competent authority to re-consider the matter afresh in accordance with law. Accordingly the following:
ORDER The writ petition is partly allowed. The impugned order at Annexure - C passed by the Karnataka Appellate Tribunal in Appeal No.535/2003 is modified and the matter is remitted to the competent authority / 2nd respondent to consider the claim of the petitioners in Form No.7-A afresh in accordance with law after affording opportunity to both the parties and if necessary, also permit them to lead additional evidence.
Sd/-
JUDGE Kgk & Rsh/Ct:Bck List No.: 1 Sl No.: 41