Karnataka High Court
Lakshminarayana Hariyachar vs Divisional Commissioner on 16 December, 1985
Equivalent citations: ILR1986KAR532
ORDER Puttaswamy, J.
1. As the questions that arise for determination in these cases between one and the same contesting parties in relation to several agricultural lands are closely inter-connected, they can conveniently be disposed of by a common order. We, therefore propose to dispose of them by a common order.
2. During the period from 1942 to 1945 one Hariyachar of Coimbator City of Tamilnadu State, a Hindu by religion and a Chartered Accountant by profession, with a passion for agriculture and horticulture, bought a number of agricultural lands bearing different survey numbers and extents situated at Varuna, Janthigalli and Dandikere villages of Mysore Taluk, Mysore District, in all measuring about 120 acres from their previous owners for valuable consideration. All those lands except Survey No. 208 of Janthigalli village measuring about 10 acres, are contiguous to each other and form one compact block of 110 acres and we will hereafter refer to the area of 110 acres and Sy. No. 208 of Janthigalli village as Block Nos. 1 and 2 respectively. Both these blocks are compendiously called as 'Varuna Estate' and we will hereafter refer to the same as such. We may at this stage digress and notice that 'varuna' in Hindu mythology and pantheon of Gods, is the rain God who showers bountyful rains for the well being and prosperity of mortals in this world for proper husbanding of lands from such rain. We are not certain whether that rain God 'Varuna' had showered plentyful rain on the area or lands eversince Hariyachar purchased them and has brought prosperity to their owners and occupiers. But, we are absolutely certain that rain God 'Varuna' had showered plentyful litigation to the owners and occupiers of the Estate named after him. We are also certain that even our order will not be the end of the ruinous litigation between the principal parties, thanks to their irreconcilable attitudes and their determination to fight to the finish.
3. Hariyachar died on 17-7-1953 and his eldest son Lakshminarayana also a Chartered Accountant by profession, as the kartha of HUF, under an agreement of lease deed dated 25-7-1956 inducted one R. Chinnaswamy Gounder of the same city as a tenant of the said Estate for a period of five years en the terms and conditions set out in that agreement We have not been referred to any lease deed between them though such a deed was contemplated to be executed in due course. We, therefore, presume that a registered lease deed was not entered into between the parties.
4. Lakshminarayana Hariyachar, who is the petitioner in Writ Petition Nos. 1078 of 1975 and 5824 of 1978 died on 8-2-1980 issueless. On his death, his wife Smt. Pramela Lakshminarayana has come on record as his legal representative in Writ Petition No. 1078 of 1975. But, in Writ Petition No. 5824 of 1978 his wife, brothers and sisters have come on record as his legal representatives who are also the petitioners in Writ Petition No. 20351 of 1981 and appellants in Writ Appeal No. 828 of 1985 and we will hereafter refer to them as Lakshminarayana or as petitioner. In Writ Petition Nos. 1078 of 1975, 5824 of 1978, 20351 of 1981 and W. A. No. 828 of 1985 R. Chinnaswamy Gounder has been arrayed as one of the respondents and we will hereafter refer to him as the respondent. In Writ Petition Nos. 5824 of 1978, 20351 of 1981 and W.A. No. 828 of 1985 the State of Karnataka is arrayed as Respondent-2 and we will refer to it as the State. In Writ Petition Nos. 1078 of 1985 and 5824 of 1978 the Divisional Commissioner, Mysore is one of the respondents and we will hereafter refer to him as the Commissioner. In Writ Petition No. 20351 of 1981 and W. A. No. 828 of 1985 the Land Tribunal, Mysore Taluk, Mysore is Respondent-2 and we will refer to it as Tribunal'. In W.A. No. 828 of 1985 respondents 4 to 6 are the Deputy Superintendent of Police, Circle Inspector of Police, Mysore, Sub-Inspector of Police, Mysore respectively and we will hereafter refer to them as police authorities or as respondents 4 to 6.
5. When Hariyachar purchased the lands from different persons they were all dry lands. But, after purchasing them he and his son Lakshminarayana made huge investments on Block No. 1, constructed four irrigation wells, installed electric pumps for drawing water from them and irrigating the lands, constructed farm houses, cattle sheds, laid out roads and fenced them before inducting the respondent as the tenant of the Estate, Without concerning ourselves with the genesis of the troubles or apportioning the blame on any one, which is not relevant, the relationship between the landlord and the tenant of the Estate became strained and bitter with each one blaming the other, but both commencing innumerable and endless proceedings for one or the other relief before the revenue authorities, Civil Court, this Court, the Supreme Court and even before the police. We consider it unnecessary to refer to all of them in any detail except to one or two proceedings in some detail, which have their impact on the questions to be decided in these cases.
6. As early as on 1-5-1961, the petitioner filed an application under Section 29 of the Mysore Tenancy Act, 1952 (Mysore Act 13 of 1952) ('the 1952 Act') before the Tahsildar, Mysore Taluk, Mysore ('Tahsildar') for eviction of the respondent from the estate on three grounds (i) that he had defaulted in payment of rents, (ii) that he had committed acts of damage and destruction, and (iii) that he had sublet portions of the Estate to one U. Vasudeva Rao which was naturally contested by him. Even this simple application made by the petitioner did not have a smooth course. After some proceedings on the maintainability of the said application before the Tahsildar, or the Tribunal, there was an order made by the District Judge, Mysore on 9-2-1972 in L. T. Appeal No. 19/69 affirming the decision of the Munsiff/Tribunal and the same was challenged by the petitioner before this Court in C.R.P. No. 1608 of 1972. On 21-11-1972 Datar, J. disposed of the same with these directions :
"2. In my view, it would be unnecessary to go into the questions, that are determined by the Courts below, as I am inclined to take the view that when the proceedings were commenced on the Ist of May, 1961 before the Tahsildar under the provisions of the Mysore Tenancy Act, 1952, the Tahsildar would not have directed that it should be presented before the Court and the Court should dispose of it under the Mysore Land Reform Act, as it was the Tahsildar who has to determine that application bearing in mind the provisions of the Mysore Tenancy Act or the Mysore Land Reforms Act. So, it was improper for him to pass an order which he has done for presentation before the Land Tribunal. In that view, while upholding the view of the Court below that the application filed by the petitioner was not maintainable in law. I direct the Land Tribunal that the application filed by the petitioner before it, should be returned to him, so that he would present that application before the Tahsildar at Mysore, who has to deal with that application in accordance with law and dispose of the same on merits. It is hardly necessary to State that after taking the application of the petitioner on the file of the Tahsildar at Mysore, the Tahsildar has to issue notice to the respondents and after hearing of the matter, dispose of the same in accordance with law. It is also not necessary to state that all the questions which the parties have raised have been kept open for fresh adjudication. This revision application is disposed of in the above terms."
In compliance with this order, the Tahsildar restored the application made by the petitioner on 1-5-1961 to its original file, registered the same as case No. TC 163/60-61, recorded evidence placed by the parties, heard them and made an order on 6-2-1974 (Exhibit-B) allowing the same in these terms :
"In view of the decision of the Hon'ble High Court of Mysore (Karnataka) in C.R.P. No. 1608 of 1972 and in view of my above findings it is hereby ordered that the respondent should be evicted from the suit lands, via Varuna Estate, comprising of nearly 120 acres as detailed in the lease deed Ex. P1".
Against this order of the Tahsildar, the Respondent filed an appeal on 25-3-1974 in T.A. No. 1/1974 before the Assistant Commissioner, Mysore Sub-Division, Mysore (AC) with an application for stay which was not granted by him. The A.C. after adjourning the said appeal to await the decision of this Court in W. P. No. 1078 of 1975 has disposed of the same on 2-11-1976 in these words:
"Case called. Appellant present. Respondent not present. He says that the case in the High Court has not been disposed. The appellant is informed that he can come up to this Court after the Writ Petition is disposed off. At present this petition is dismissed"
Sd/- A.C. 2-11-1970"
7. But, notwithstanding the fact that the AC did not grant an order of stay in the said appeal before him, the Respondent did not deliver possession of the estate to the petitioner and continued to be in possession of the same as on 1-3-1974 and thereafter also. In that view, the petitioner sued out execution of the order dated 6-2-1984 before the Tahsildar in Execution No. 5/74 who by his delivery warrant issued on 22-4-1974 (Exhibit-C) authorised the Revenue Inspector, Mysore Taluk, Mysore (RI) to dispossess the Respondent and hand over possession of the Estate to the petitioner. On the authority of the said delivery warrant, the RI dispossessed the Respondent from the entire estate on 25-4-1974 and handed over its possession to the petitioner on that day.
8. On 29-4-1974 the Respondent presented a Revision Petition under Section 118A of the Karnataka Land Reforms Act, 1961 (Karnataka Act 10 of 1962) ('LR Act') in R. A. No. 4 of 1974-75 before the Commissioner challenging the delivery warrant issued by the Tahsildar (Exhibit-C) with an application for stay, on which the Commissioner made an interim order on 4-5-1974 in these terms:
"....Accordingly, I pass a conditional order of stay as follows:-
The Tahsildar will hold an enquiry and arrive at a finding as to who among the two parties is in actual possession of the property as on the date of this order. After arriving at a finding he will take all necessary steps to ensure that the petitioner or the respondent as the case may be is left undisturbed by the other party.
Issue this order to the Tahsildar for necessary action".
In Writ Petition No. 1718 of 1974 the Respondent challenged the said interim order before this Court and Venkataramaiah, J (as His Lordship then was) rejected the same on 15-5-1974 at the preliminary hearing stage.
9. In compliance with the said interim order of the Commissioner, The Tahsildar held an enquiry and reported to him on 9-7-1974 to the effect that the Respondent had been dispossessed of the Estate on 25-4-1974 delivering the same to the petitioner on the same day.
10. While the said Revision Petition was pending before the Commissioner, the Respondent filed an application on 23-8-1974 in T. C. No. 2/74-75 before the Tahsildar praying for re-delivery of possession of the lands which is still pending disposal before him. But, notwithstanding the same, the Commissioner considered the said Revision Petition and by his order made on 24-2-1975 allowed the same, set aside the order of execution made by the Tahsildar and the delivery warrant (Exhibit-D). In Writ Petition No. 1078 of 1975 presented on 3-3-1975 the petitioner has challenged the said order of the Commissioner. On 5-3-1975 Jagannatha Shetty, J. (as His Lordship then was) issued rule nisi and stayed the operation of the said order of the Commissioner which has continued ever since then without any modification.
11. On 27-8-1974 the Respondent made an application under Section 48-A(1) of the LR Act as amended by the Karnataka Land Reforms (Amendment) Act of 1978 (Karnataka Act I of 1974) ('the 1974 Act') before the Tribunal for conferment of occupancy rights of the estate on the ground that he was a tenant which is resisted by the petitioner on diverse grounds. While the said application was so pending before the Tribunal, the petitioner on 1-5-1978 approached this Court in Writ Petition No. 5824 of 1978 challenging the constitutionality of Sections 44, 45 and 118A of the LR Act as substituted by the 1974 Act.
12. After a number of adjournments, the application made by the Respondent was posted before the Tribunal on 17-9-1981 on which day it rejected the prayer of the petitioner for an adjournment, recorded the evidence of the Respondent and posted the case to 23-9-1981 for the pronouncing its orders in the case. On 21-9-1981 the petitioner approached this Court in Writ Petition No. 20351 of 1981 seeking for a Writ of Prohibition to the Tribunal not to proceed with the consideration and disposal of the said application made by the Respondent. On 22-9-1981 Bhimiah, J. (as His Lordship then was) issued rule nisi and granted an interim order restraining the Tribunal from proceeding with the consideration and disposal of the said application made by the Respondent. But, still the Tribunal on 23-9-1981 pronounced its orders allowing the application made by the Respondent in part granting occupancy rights over an area of 54 acres, the extent allowable and resuming the other extent to Government for disposal under the LR Act. With the leave granted by us, the petitioner has also challenged the said order made by the Tribunal (Annexure-B).
13. While the foresaid three Writ Petitions were pending before a division Bench, the Respondent moved this Court on 23-5-1984 in Writ Petition No. 8275 of 1984 for a writ or direction to Respondents 3 to 5 not to give them any protection to Respondents 6 to 10 therein or the petitioner. On 25-3-1985 Bopanna, J. disposed of the said Writ Petition with the following directions to Respondent 3 to 5 :
"However, Respondents 3 to 5 are restrained from taking any action touching the lands in question againt the petitioner without an order from the Tribunal unless the petitioner commits breach of peace or creates a law and order problem warranting their interference."
Respondents 6 to 10 have assailed this order before us in W. A. No. 828 of 1985.
14. Sri S. K. Venkataranga Iyengar, Learned Senior Advocate assisted by Sri S. M. Babu has appeared for the petitioner in all these cases. Sriyuths Kadidal Manjappa and T. R. Subbanna, Learned Advocates have appeared for the Respondent in all of them. Sri S. V. Jagannath, Learned Government Advocate has appeared for the State the Commissioner, the Tribunal and police authorities in all of them. Both sides in their elaborate arguments extending for full 5 days have relied on a large number of Rulings in support of their respective cases and we will refer to them at the appropriate stages.
15. On the contentions urged before us, as many as 8 points arise for our determination and they are :
(1) Whether the relationship of landlord and tenant between the petitioner and the Respondent of the 'Varuna Estate' was completely and irrevocably snapped on and from 6-2-1974 and the latter became a trespasser of the same from that day?
(2) Whether the Respondent was a tenant in possession of 'Varuna Estate' as on 1-3-1974 or not ?
(3) Whether the Respondent had been dispossessed from Varuna Estate and if so, when ? If so, dispossessed, what then is his remedy for restoration ?
(4) Whether Sections 44, 45 and 118A of the L.R. Act are immune from attack ? If not, whether all or any of them are invalid ?
(5) Whether the order dated 24-2-1975 of the Commissioner in Case No. R.A. 4/74-75 was within his jurisdiction and if so, was it legal and valid ?
(6) Whether the order dated 23-9-1981 of the Tribunal in Case No. KLRM 1700/74-75 is legal and valid ?
(7) Whether the application made by the Respondent for conferment of occupancy rights before the Tribunal can be pursued by him before he secures possession of Varuna Estate ?
(8) Whether the Respondent was entitled for any relief in Writ Petition No. 8275 of 1984 ?
As points No. 1 and 2 that are crucial are inter-related and our discussion on any one of them will overlap on the other, we will deal with them together first and then with the other points in their order.
RE : POINTS (1) AND (2)
16. Sri Iyengar has urged that on the Tahsildar passing an order for eviction against the Respondent on 6-2-1974 the relationship of landlord and tenant between him and the petitioner of the Varuna Estate was completely and irrevocably snapped and that on and from that date, the Respondent became a trespasser of the estate with no right to continue on the estate and therefore, he cannot claim for conferment of occupacy rights under the LR Act before the Tribunal.
17. Sri Subbanna has urged that notwithstanding the order of the Tribunal for eviction which itself was a nullity, the respondent who was in lawful possession of the estate as on 1-3-1974 was a tenant of that estate and was entitled for conferment of occupancy rights under the LR Act.
18. Before we examine the rival contentions that has varied and different facets, it is first useful to briefly notice the history of legislation touching on the relationship of landlords and tenants of agricultural lands, some of the material provisions and ascertain their true scope and ambit also.
19.1. The Tenancy Act enacted in 1952 to regulate the relationship of landlords and tenants of agricultural lands, impose restrictions on the transfer of agricultural lands and incidental provisions came into force at any rate from 1-1-1954 in the entire old Mysore area.
19.2. Section 2 of the Act defines certain terms that generally occur in the Act. Section 2(9) defines the term 'Landlord' as a person who has leased land to a tenant and includes a person entitled to receive rent from a tenant or from a person deemed to be a tenant under the provisions of the Act. Section 2(15) defines the term 'tenant' as meaning an agriculturist who holds land on lease from a landlord and includes a person who is deemed to be a tenant under the provisions of the Act.
19.3. Section 3 of the Act provides for the application of Chapter V of the Transfer of Property Act, 1882 (Central Act No. IV of 1882) to agricultural leases in the State to the extent they are not in derogation with the provisions of the Act.
19.4. Section 4 of the Act which is material reads thus :
"4. Persons to be deemed tenants -- A person lawfully cultivating any land belonging to another person shall be deemed to be a tenant if such land is not cultivated personally by the owner and if such person is not --
(a) a member of the owner's family, or
(b) a servant on wages payable in cash or kind but not in crop share or a hired labourer cultivating the land under the personal supervision of the owner or any member of the owner's family, or
(c) a mortgagee in possession."
This section makes a person lawfully cultivating agricultural lands of another person to be a tenant of such land if such person does not fall within the exceptions referred to therein. In other words, a person lawfully cultivating the land of another person, if he is not a member of the owner's family, a servant or a mortgagee in possession, notwithstanding the status in which he came to occupy the same, becomes a tenant of such land under the Act. Section 5 of the Act provides for the minimum period of tenancy notwithstanding the period stipulated in any contract, decree or order of the Court. Sections 6 to 14 that regulate the quantum of rent and other incidental matters are not material for our purpose.
19.5. Section 15 of the Act regulating the termination of tenancies which is material reads thus :
"15. Termination of tenancy-- (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
(ii) if an application for the determination of reasonable rent is pending before the Tahsildar or the Assistant Commissioner or the Deputy Commissioner under Section 12 has failed to deposit with the Tahsildar or the Assistant Commissioner or the Deputy Commissioner as the case may be, a sum equal to the amount of rent which he would have been liable to pay for that year if no such application had been made, or
(iii) in case the reasonable rent determined under Section 12 is higher than the sum deposited by him, has failed to pay the balance due from him within two months from the date of the decision of the Tahsildar or the Assistant Commissioner or the Deputy Commissioner as the case may be;
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; or
f) has used such land for a purpose other than agriculture.
2) In the case of a tenant, the duration of whose tanancy is for a period of five years or more, the tenancy shall terminate at the expiration of such period, unless the landlord has, by the acceptance of rent or by any other act or conduct of his, allowed the tenant to hold over within the meaning of Section 116 of the Trasfer of Property Act, 1882.
3) Notwithstanding anything contained in Sub-section (1), the tenancy of any land held by a tenant who is a widow or a minor or who is subject to physical or mental disability, shall not be liable to be terminated under the said sub-section, only on the ground that such land has been sub-let on behalf of the said tenant."
The termination of tenancies for matters provided therein only and no other, must conform with this section. The rights, if any, available to the landlords under contracts and the TP Act stand abrogated or modified and are strictly regulated by this provision only.
19.6. Section 16 of the Act which regulates termination of tenancies held for a continuous period of 12 years or more is not material for our purpose.
19.7. Section 17 provides for renewal of tenancies for a period of five years, if the tenant is allowed to hold over the tenancy under Section 5(2) of the Act.
19.8. Sections 18 to 28 dealing with certain prohibitions and pre-emption rights conferred on tenants are not relevant for our purpose.
19.9. Section 28-A of the Act that bars interference with the cultivation of tenanted agricultural lands which is material reads thus :
"28A. Bar to interference with cultivation, etc. -- (1) No landlord either himself or through any person acting on his behalf shall, save in accordance with any law for the time being in force, interfere with the cultivation of the land leased to a tenant or deprive him of possession of such land."
This section aport from the protection available to any person in possession under the general law in the Country expressly protects the possession of agricultural tenants and prohibits landlords by themselves or through their agents or servants from interfering with the cultivation and possession of tenants of lands held by them.
19.10. Section 29 of the Act which is material reads thus :
29. Procedure for taking possession -- (1) A tenant or landlord entitled to possession of any land or dwelling house under any of he provisions of this Act, may apply in writing for such possession, to the Tahsildar. The application shall be made in such form as may be prescribed.
(2) No landlord shall during the period of tenancy obtain possession of any land held by tenant except under an order of the Tahsildar. For obtaining such order, he shall make an application in the prescribed form.
(3) On receipt of an application under Sub-section (1) or (2), the Tahsildar shall after holding an enquiry, pass such order thereon, as he deems fit.
(4) Any person taking possession of any land or dwelling house except in accordance with the provisions of Sub-section (1) or (2), as the case may be, shall be liable to forfeiture of crops, if any, grown on the land in addition to payment of costs as may be directed by the Tahsildar or by the Assistant Commissioner or by the Deputy Commissioner and also to the penalty prescribed in Section 42".
A landlord seeking for eviction or ejectment of his tenant must commence a proceeding under this Section before the Tahsildar of the Taluk who on inquiry is empowered to make an order if he is satisfied with the one or the other grounds available under the Act. An order under Section 29 is comparable to a decree for ejectment made by a Civil Court, This Section or for that matter any other provision of the Act do not declare that on the passing of an order for eviction, the relationship of landlord and tenant is completely and irrevocably snapped and thereafter such a tenant becomes a trespasser of that land.
19.11. Sections 30 and 31 of the Act occurring in the same chapter are not material for our purpose.
19.12. Sections 32 to 41 of the Act provide for the procedure, jurisdiction, appeals and revisions under the Act. An order made under Section 29 of the Act is subject to two appeals under Section 36 of the Act, the first one before the AC and the second one before the Deputy Commissioner of the District. An order made by the Deputy Commissioner in a second appeal is subject to a revision under Section 37 of the Act.
19.13. The rest of the provisions dealing with the offences, penalties and miscellaneous provisions and the Rules made thereunder are not material for our purpose.
20. From this very brief survey, it is apparent that agricultural tenancies in old Mysore area even where they had their origin in contracts were regulated by the 1952 Act. The Act seriously interfered with the rights of landlords in collecting agreed rents, forfeiting tenancies, interfering with the cultivation of tenants and dispossessing them except under and in accordance with the provisions made therein.
21. The 1952 Act was not a temporary measure. But, still the State with the avowed object of safeguarding possession of tenants and preventing their evictions before enacting comprehensive Land Reforms legislation first enacted the Mysore Tenancy (Amendment and Continuance of Tenancies) Act, 1957 (Karnataka Act 16 of 1957) prohibited evictions and dispossession of tenants till the period specified in Section 4 of that Act, which was extended till 30-6-1966 by Acts 17 of 1959, 4 of 1961, 33 of 1961 and 12 of 1963 enacted from time to time. We will hereafter refer to these Acts as the 1957 Act Section 142(1A) of the LR Act introduced by Act No. 14 of 1965 protects those tenants protected by 1957 Act from eviction and dispossession except in accordance with that Act.
22.1. Before the expiry of the period stipulated in the 1957 Act, the State enacted the LR Act as Act No. 10 of 1962. The LR Act came into force from 2-10-1965 (vide S.O. No. 3166 dated 13-9-1965). The LR Act, a uniform law was enacted to regulate agrarian relations, conferment of ownership on tenants, ceiling on land holdings and for other matters incidental to those objects. Section 142 of the LR Act repeals the 1952 and 1957 Acts with the usual general and special savings incorporated by Act 14 of 1965.
22.2. Chapter II of the LR Act containing as many as 40 Sections that is Sections 3 to 43, in reality replaced and assimilated the 1952 Act and all its beneficial provisions to tenants.
22.3. Section 4 of the LR Act is a virtual reproduction of Section 4 of the 1952 Act Section 5 of the LR Act prohibits the creation of new tenancies from the appointed day except those that are permitted. Section 14 of the LR Act provides for resumption of lands by landlords in the specified circumstances. Section 15 provides for resumption of lands by soldiers and seamen.
22.4. Section 22 of the LR Act providing for two more grounds for eviction of tenants is a virtual reproduction of Section 15 of the 1952 Act. Sections 23 to 40 deal with rents, option to purchase and various other matters that are not material for our purpose. Section 41 of the LR Act corresponding to Section 29 of the 1952 Act empowered the Munsiff-Tribunal (Munsiff) to deal with applications for eviction.
22.5. Chapter IX of the Act containing Sections 111 to 124 empowered Government to constitute Tribunals consisting of Munsiffs, adjudication of claims by them, procedure to be followed, appeals against orders made by Munsiffs and other incidental matters.
23.1. The 1974 Act which came into force from 1-3-1974 made sweeping amendments to the LR Act. Section 5 as substituted by the 1974 Act prohibited the creation of tenancies or leases except by defence personnel. Section 14 of the original Act providing for resumptions by landlords for bona fide and other specified purposes was omitted from 1-3-1974. The power of adjudicating disputes under Chapter-II of the LR Act were transferred to Tahsildar from the Munsiff.
23.2. The various amendments made to several provisions in Chapter III of the Act, in particular Sections 44, 45, 47 and other provisions by one sweep provide for transfer of all tenanted lands as on 1-3-1974 to the State, conferment of occupancy rights on those who were holding them as tenants subject to ceilings, payment of compensation, determination of disputes by a Tribunal consisting of an Assistant Commissioner of the Revenue Sub-Division and other non-officials and their finality subject to the power of judicial review conferred on superior Courts by the Constitution.
23.3. Section 44 of the LR Act that provides for vesting of non-resumed, non-tenanted lands was substituted providing for vesting of all tenanted lands as on 1-3-1974 in the State subject to the rights created in that and other sections. Section 44 that is material reads thus :
"44. 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.
(2) Notwithstanding anything in any decree or order of or certificate issued by any Court or authority directing or specifying the lands which may be resumed or in any contract, grant or other instrument or in any other law for the time being in force, with effect on and from the date of vesting and save as otherwise expressly provided in this Act, the following consequences shall ensue, namely : --
(a) all rights, title and interest vesting in the owners of such lands and other persons interested in such lands shall cease and be vested absolutely in the State Government free from all encumbrances ;
(b) amounts in respect of such lands which become due on or after the date of vesting shall be payable to the State Government and not to the land owner, landlord, or any other person and any payment made in contravention of this clause shall not be valid ;
(c) all arrears of land revenue, cesses, water rate or other dues remaining lawfully due on the date of vesting in respect of such lands shall after such date continue to be recoverable from the land owner, landlord or ether person by whom they were payable and may, without prejudice to any other mode of recovery, be realised by the deduction of the amount of such arrears from the amount payable to any person under this Chapter ;
(d) no such lands shall be liable to attachment in execution of any decree or other process of any Court and any attachment existing on the date of vesting and any, order for attachment passed before such date in respect of such lands shall cease to be in force ;
(e) the State Government may, after removing any obstruction which may be offered, forthwith take possession of such lands ;
Provided that the State Government shall not dispossess any person of any land in respect of which it considers alter such enquiry as may be prescribed, that he is prima facie entitled to be registered as an occupant under this Chapter.
(f) the land owner, landlord and every person interested in the land whose rights have vested in the State Government under Clause (a), shall be entitled only to receive the amount from the State Government as provided in this Chapter ;
(g) permanent tenants, protected tenants and other tenants holding such lands shall, as against the State Government, be entitled only to such rights or privileges and shall be subject to such conditions as are provided by or under this Act ; and any other rights and privileges which may have accrued to them in such lands before the date of vesting against the landlord or other person shall cease and determine and shall not be enforceable against the State Government."
Section 45 of the original Act was completely substituted providing for conferment of occupancy rights on those who were tenants as on 1-3-1974 subject to other provisions. Section 45 which is material reads thus :
"45. Tenants to be registered as occupants of land on certain conditions -- (1) Subject to the provisions of the succeeding sections of this Chapter, every person who was a permanent tenant, protected tenant or other tenant or where a tenant has lawfully sub-let, such sub-tenant shall with effect on and from the date of vesting be entitled to be registered as an occupant in respect of the lands of which he was a permanent tenant, protected tenant or other tenant or sub-tenant before the date of vesting and which he has been cultivating personally.
(2) If a tenant or other person referred to in Sub-section(1).
(i) holds land partly as owner and partly as tenant but the area of the land held by him as owner is equal to or exceeds a ceiling area he shall not be entitled to be registered as an occupant of the land held by him as a tenant before the date of vesting.
(ii) does not hold and cultivate personally any land as an owner, but holds land as tenant, while he cultivates personally in excess of a ceiling area, he shall be entitled to be registered as an occupant to the extent of a ceiling area ;
(iii) holds and cultivates personally as an owner of any land the area of which is less than a ceiling area, he shall be entitled to be registered as an occupant to the extent of such area as will be sufficient to make up his holding to the extent of a ceiling area.
(3) The land held by a person before the date of vesting and in respect of which he is not entitled to be registered as an occupant under this section shall be disposed of in the manner provided in Section 77 after evicting such person."
The other provisions that follow these provisions in Chapter III and other Chapters effectuate these provisions and a detailed analysis of them is not very necessary for our purpose.
23.4. With this brief survey of legislation on the topic, we proceed to examine point Nos. 1 and 2 first from the stand point of general law and then from the stand point of tenancy legislation, however, stating our views on the efficacy of the orders made by this Court in C.R.P. No. 1608 of 1972 and the Tahsildar.
24. We have earlier set out the operative portion of the order made by this Court in C.R.P. No. 1608 of 1972 and the order made by the Tahsildar in T.C. No. 163 of 1960-61 on that basis.
25. Sri Subbanna at the very threshold contended that the order made by this Court in C.R.P. No. 1608 of 1972 and the consequent order made by the Tahsildar on 6-2-1974 were wholly without jurisdiction, non-est illegal and had to be ignored in deciding the several questions that arise before us.
26. When closely examined, Sri Subbanna seeks to challenge the order made by this Court in C.R.P. No. 1608 of 1979 as also the order of the Tahsildar before us.
27. The order made by this Court in C.R.P. No 1608 of 1972 has become final. We cannot and we do not propose to sit in judgment over the same. We cannot also examine the validity of the order of the Tahsildar in these proceedings. We must assume them to be valid and in force and examine all the questions on that basis only. We, accordingly, decline to examine this contention of Sri Subbanna and proceed in examine the questions as if those orders are valid and still in force.
28. According to Sri Iyengar an order for eviction or a decree for ejectment without anything more completely and irrevocably snaps the relationship of landlord and tenant from the very time there is such an order or decree and the tenant in occupation of the land becomes a 'trespasser' from such time. If this contention is pushed to its logical conclusion, then it necessarily requires us to ignore the appeals and other legal proceedings that can be initiated or actually initiated against such an order or decree and the orders or decrees that can and may be made on such appeals and other legal proceedings. We must examine whether such is the position in law, justice and equity.
29. The ordinary law of contract codified in our Country in the Contract Act of 1908, the TP Act, the general principles of landlords and tenants, the 1952 Act and the LR Act do not support this extreme contention of Sri Iyengar, which results in disastrous results and strikes at the very concept of appeals and other legal proceedings and orders that can be made by the superior Courts or authorities as the case may be. Sri Iyengar did not refer to any firm and sound legal principle or any authority to support the very board proposition. A contention that is not founded on principle or authority resulting in grave and serious consequences cannot normally be accepted by us. On this approach itself, we will be justified in rejecting this contention of Sri Iyengar.
30. Section 35 of the 1952 Act, Section 41 of the LR Act or for that matter every provisions of these Acts do not provide for the conclusion urged by Sri Iyengar. Every sound legal principle militates against our taking such a view.
31. We refrain to say whether the order made by the Tahsildar on 6-2-1974 is an order made under the 1952 Act or an order made under the LR Act and its correctness as also on the outcome of the appeal filed by the respondent. Before that order reaches finality it is hazardous for us to hold that the same had attained finality and the status of the respondent had transformed itself to one of trespasser from the very date of that order. We are of the view that the legal principles enunciated by the Supreme Court in Garikapati Veeraya v. Subbaiah Choudhari and ors., AIR 1957 SC 540 though not directly but indirectly do not also support the same. We find that non of the leading authorities on the law of the landlord and tenant like Woodfall, Halsbury's Laws of England Vol. 27 (fourth edition) dealing with landlord and tenant, Hill and Redman's Law of Landlord and Tenant and Sinha's Land Lord and Tenant do not support the extreme contention urged by Sri Iyengar. On this analysis also we have no hesitation in rejecting this contention of Sri Iyengar.
32. As on the day the tenancy was created and the respondent was inducted as a tenant, the 1952 Act was in force. The 1952 Act stood repealed from 2-10-196$ from which day Chapter-II of the LR Act substituting the 1952 Act and regulating the relationship of landlords and tenants is in operation. The legal effect of these enactments is that though the tenancy had its origin in contract, it transformed itself into 'statutory tenancy, and the eviction and dispossession of the tenant from the tenanted lands came to be regulated by tenancy or rent control legislation. In any event under the tenancy legislation, the relationship of landlord and tenant is not snapped on making an order for eviction.
33. In V. Dhanapal Chettiar v. Yesodai Ammal, a Bench of seven Learned Judges of the Supreme Court had occasion to examine the necessity or otherwise of a notice of termination of tenancy under Section 106 of the TP Act before commencing eviction proceedings under the urban Tenancy or Rent Control legislations in the Country. In examining that question and holding that such a notice was not necessary, Untawalia, J. speaking For an unanimous Court on tenancies regulated by law or Rent Control legislation eviction and dispossession of tenants thereto expressed thus :
"....Without detaining ourselves on this aspect of the matter by any elaborate discussion, in our opinion, it will suffice to say that the various State Rent Control Acts make a serious encroachment in the field of freedom of contract. It does not permit the landlord to snap his relationship with the tenant merely by his act of serving a notice to quit on him. Inspite of the notice, the law says that he continues to be a tenant and he does so enjoying all the rights of a lessee and is at the same time deemed to be under all the liabilities such as payment of rent etc, in accordance with the law.
XX XX XX XX .... The tenancy actually terminates on the passing of the order or decree for eviction and the building falls vacant by his actual eviction. The giving of the notice, therefore, is a mere surplusage and unlike the law under the Transfer of Property Act it does not entitle the landlord to evict the tenant."
These principles or exposition was undoubtedly made on Urban Rent Control legislation and their legal effect on those tenancies can hardly be doubted. But, we are of the considered view that these are general legal principles enunciated and are applicable to all cases of tenancies regulated or controlled by law and are therefore, applicable to agricultural tenancies regulated and controlled by the 1952 Act and the LR Act. An order for eviction continues to be so still it is executed by actual recovery and delivery, is also the view expressed by a Division Bench of this Court in Narasinga Rao Srinivasa Rao Inamdar Bherdikar v. Bhimappa Annappa Dalwai and Anr., 1972 (2) Mys, L.J. 193. If the principles in both these cases apply as they do, then the contention urged by Sri Iyengar, which runs counter to them, cannot be accepted by us. As we apprehend, this question is concluded by the ruling of the Supreme Court in Dhanapal Chettiar's case, and, therefore, it is no more necessary for us to refer to any more authorities at all.
34. A term or a clause for forfeiture of tenancy must be in writing and must expressly be found in the lease deed itself (vide Section 111(g) of the Transfer of Property Act). The agreement dated 25-7-1956 cannot be construed as a lease deed. If it is not a lease deed, it cannot possibly be depended upon to hold that there is a specific provision for forfeiture of the tenancy between the parties. Assuming that the agreement dated 25-7-1956 should be construed as a lease deed then also we do not find a specific terra or a clause authorising the petitioner to forfeit the tenancy on the violation of the terms and conditions of the lease by the respondent. Even if we construe any one of the terms or clauses of the agreement as providing for forfeiture, then also having regard to the resistance of the respondent that is implicit and explicit, the petitioner cannot enforce the same except through a Court or other agency created by law. Lastly from the protection available to tenants in the laws noticed by us earlier which prohibited evictions and dispossessions of tenants despite a decree or an order thereto, the forfeiture clause if any, in the agreement dated 25-7-1956 is of no avail to the petitioner. From this also it follows that the contention of the petitioner that the respondent ceased to be a tenant on and from 6-2-1974 has no merit.
35. In Amolak Banechand and Ors. v. Dhondi Valad Khandu Bhosle and Anr., 30 ILR (Bombay) 466 relied on by Sri Iyengar, the High Court of Bombay dealing with the forfeiture of property by Government for non-payment of arrears of land revenue noticed the meaning of the term 'forfeiture.' We are of the view that that meaning ascribed to the said term to cases of 'statutory tenancies' has hardly any relevance. In Budhan Singh v. Babi Bux and Anr., strongly relied on by Sri Iyengar, the Supreme Court in ascertaining the meaning of the term 'held' occurring in U.P. Zamindari Abolition and Land Reforms Act, 1970 interpreted the same as lawfully held. We are of the view that the principle enunciated in Budhan Singh's case, do not bear on the point. In Basayya v. Land Tribunal, Hungund and Anr., 1978 (2) KLJ 131 relied on by Sri Iyengar, Nesargi, J. was dealing with a case of a former tenant against whom an order of eviction had been passed under the Bombay Tenancy and Agricultural Lands Act of 1948, had been granted three months time by this Court on 8-9-1961 but had remained in possession even after the expiry of such time. On those facts, Nesargi, J. held that he was in possession of the land as a trespasser and was not entitled for conferment of occupancy rights under the L R Act. We are of the view that this principle enunciated in Basayya's case, 1978 (2) KLJ 131, even if correct and had not been reversed by the Division Bench in its order made in W. A. No. 174 of 1978 decided on 7-2-1985, Lingagpa v. Basavaiah sanctioning the compromise, really turned on the fact of possession after expiry of time granted by this Court and does not bear on the point.
36. On the foregoing discussion, we answer point No. 1 against the petitioner and in favour of the respondent.
37. Every one of the facts and reasons on which we have found point No. 1 against the petitioner and in favour of the respondent mutatis mutandis apply for answering point No. 2 also in the same manner, which is inextricably connected with point No. 1 and we must answer that also in the same way. But, still we briefly propose to examine the same.
38. We have earlier held that the relationship of land lord and tenant had not been snapped between the petitioner and the respondent as on 6-2-1974. Even according to the petitioner he did not execute the order of eviction and obtain possession of 'Varuna Estate' from the respondent on or before 1-3-1974 and he obtained such possession from only 25-4-1974. From these facts that are not in dispute or found by us, it necessarily follows that the respondent was in lawful possession of Varuna Estate as a tenant of the petitioner as on 1-3-1974. We, accordingly answer point No. 2 also against the petitioner and in favour of the respondent.
RE : POINT No. (3)
39. On the basis of the order made by the Tahsildar in T.C. No. 163 of 1961, the petitioner sued out execution of the same in T. C. Execution No. 5 of 1974 before the Tahsildar who made an order on 20-4-1974 and issued a delivery warrant authorising his revenue inspector to dispossess the respondent from the lands and deliver their possession to the petitioner. On the authority of that delivery warrant the RI on 25-4-1974 dispossessed the respondent from the lands or Varuna Estate and delivered their possession to the petitioner on the same day, which fact has also been reported by the Tahsildar in his report made on 9-7-1974 to the Commissioner (vide page No. 9 of File No. 47 of the Commissioner). In his petitions and affidavits filed before the Commissioner in R. A. No. 4/74-75 the respondent admits the above facts which is repeated by him in his pamphlet of 30-3-1978 (Annexure-R3). In his deposition before the Tribunal recorded as late as on 17-9-1981 the respondent-affirms the same. On the very case pleaded by him, and the evidence on record, it is abundantly clear that the respondent has been dispossessed from the estate on 25-4-1974 and the petitioner has taken possession of the same on that day and on and from that date, the former is out of possession and latter is in possession of the same.
40. We propose to examine the legal position emanating from our earlier finding without reference to the order made by the Commissioner or as if there was no such order made by him at all.
41. After the Tahsildar dispossessed him, the respondent had approached him by an application in T.C. No. 2/74-75 under Section 41(1) of the LR Act for redelivery which is still pending before him. Before the Tahsildar decides that application we cannot and do not propose to deal with the same. Without any doubt, this application made by the respondent is an application made under Sections 41 and 113 of the LR Act read with Section 144 of the CPC for restitution or restoration of possession of the lands and has to be decided by the Tahsildar. But, without obtaining such restitution in accordance with law, the respondent cannot interfere with the possession of the petitioner who has obtained their possession from the Tahsildar vide Rudrappa Bin Sankappa v. Narasing Rao Ramachandra, 7 Bombay Law Reporter 12 Lallu Yeshwant Singh v. Rao Jagdis Singh and Ors., AIR 1968 SC 620 and Patil Exhibitors (P) Limited v. Corporation of the City of Bangalore, ILR 1985 KAR 3700.
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 LR Act.
RE : POINT No. (4)
43. The petitioner has challenged the validity of Sections 44, 45 and 118A of the LR Act on the very grounds on which those and certain other provisions had been challenged before this Court in Writ Petition No. 1470 of 1974 and connected cases. Sri Iyenger has highlighted them before us.
44. The 1974 Act has a whole substituting Sections 44, 45 and 118A of the LR Act in their entirety (vide : Sections 34, 35 and 73 of the 1974 Act) have been included as Item No. 141 of IX Schedule to the Constitution by the Coustitution 34th Amendment. In Sri Jagadguru Durundundeswara Sidha Santhan Math at Nidasosi Belgaum District v. State of Karnataka and anr., 1983 (1) KLJ 489(Sri Jagadguru's case) a Division Bench of this Court consisting of Chandrasekhar, C. J. and Venkatachala, J. in Writ Petition Nos. 1470 of 1974 and connected, had held that the 1974 Act was immune from attack (vide para 506). In this very case the Court rejecting the very challenge made by the petitioner has upheld the 1974 Act in its entirety (vide para 55 on page 524). In B. K. Kumaraswamy v. State of Karnataka and ors., CA No. 3785-87/82 DD 5-12-1984 the Supreme Court has affirmed this decision in. these words :
"The validity of the Karnataka Land Reforms Act, 1961 has already been upheld by this Court. The Karnataka Land Reforms (Amendment and Miscellaneous Provisions) Act, 1973 has been included in the 9th Schedule and is no longer open to attack. Most of the points raised are covered by the decision of the Constitution Bench in Vaman Rao's case. We find no substance in any of the other points. The appeals are therefore, dismissed with costs."
For the very reasons on which the Supreme Court in Kumaraswamy's case, CA No. 3785-87/82 DD 5-12-1984 and this Court in Sri Jagadguru's case, 1983 (1) KLJ 489 have rejected the challenge to the 1974 Act and Sections 44, 45 and 118A of that Act, we reject this challenge of the petitioner.
RE : POINT No. 545. Sri Iyengar has urged that the order made by the Commissioner was wholly without jurisdiction and if within his jurisdiction also then the same was manifestly illegal.
46. Sriyuths Jagannath and Subbanna have urged that the order made by the Commissioner was within his jurisdiction, legal and valid.
47. Section 118A of the LR Act, on the true scope and ambit of which the jurisdiction of the Commissioner turns, reads thus :
"118A. Revision by the Divisional Commissioner -- The Divisional Commissioner may of his own motion or on the application of any person at any time call for and examine the record of any order passed by the Assistant Commissioner against which no appeal lies or the record of any order passed or proceeding recorded by the Tahsildar for the purposes of satisfying himself as to the legality or propriety of such order as to the regularity of such proceedings and may pass such order with respect thereto as he thinks fit ;
Provided that no such order shall be made except after giving the person affected a reasonable opportunity of being heard."
This Section which is very unhappily worded empowers the Commissioner either suo moto or on application, to revise orders of Assistant Commissioners and Tahsildars in proceedings under the LR Act. While the first part of the Section empowers the Commissioner to revise orders of Assistant Commissioners against which no appeal lies or which is not appealable, the second part empowers him to revise orders or proceedings of Tahsildars without any such limitation or condition on the one placed on the orders of the ACs. The second part of the Section conferring power on the Commissioner over the orders or proceedings of the Tahsildar is deliberately worded in a different manner than the former part of the same section conferring power on orders made by Assistant Commissioner. Why the legislature has made such a departure for some inexplicable or understandable reasons is not a matter for us to speculate at all. But, that can hardly be a ground for us to unnecessarily strain the language of the Section and reach a conclusion that is hot warranted by the language of the Section. Under the second part of the Section, as it stands, the Commissioner was undoubtedly competent to entertain the revision petition filed by the respondent, examine the legality and regularity of the order and the proceedings before the Tahsildar. From this it follows that the Commissioner was competent to entertain the revision petition of the respondent.
48. Some time after filing a revision under Section 118A of the LR Act, before the Commissioner, the respondent also filed a separate and independent application before the Tahsildar seeking for re-delivery or restitution of the lands or for the very relief sought in his revision petition before the Commissioner. But, ignoring the same, the Commissioner heard the matter and decided the revision in favour of the respondent.
49. The power of revision is generally conferred on superior Courts or authorities to prevent the miscarriage of justice or advance the cause of justice but not to stifle other legal proceedings under the very enactment. The power of revision should not normally be exercised when a person has availed another effective legal remedy on the very question. After all it is not in the interests of parties and justice that another legal proceeding pending before another authority when competent to grant that very relief should be stifled or undone by a sidewind. Even though the Commissioner was competent to entertain the revision of the respondent, on the above facts and developments, he should have declined to exercise his power reserving liberty to the respondent to pursue his application before the Tahsildar. We are, therefore, of the view that the Commissioner on the facts and developments of the case acted illegally in the exercise of his jurisdiction and the same, therefore calls for our interference oh this ground only.
50. On the foregoing discussion, we hold that though the order of the Commissioner was within his jurisdiction and the same is not legal and valid. But, this conclusion of ours cannot and does not prevent the Tahsildar' from allowing the application made by the respondent for restitution on the very grounds that commended to the Commissioner.
RE : POINT NO (6)
51. Sri Iyengar has urged that the order made by the Tribunal on 23-9-1981 was in violation of the interim order made by this Court in Writ Petition No. 20351 of 1981. Sri Iyengar has also urged that the order made by the Tribunal without bringing the L. Rs of the deceased Petitioner, providing them sufficient opportunity to place their evidence and without considering all their objections was plainly illegal.
52. Sri Jagannath and Sri Subbanna have sought to support the order of the Tribunal.
53. As there is substance in the second contention of Sri Iyengar it is unnecessary for us to examine his first contention.
54. When the application made by the respondent was pending before the Tribunal, Lakshminarayana, the landlord or the owner of the lands died on 8-2-1980 which fact was brought to its notice (vide : the application made on 6-6-1981 on page 293 of the Land Tribunal records). But, still the Tribunal ignoring the same and without bringing the Legal Representatives of Lakshminarayana proceeded to hold the inquiry and made its order on 23-9-1981.
55. When a party to a legal proceeding dies, it is elementary that the same cannot be proceeded with without bringing his L.Rs. on record. We need hardly say that everything done thereafter including the final order even deliberately overlooking the same are clearly illegal. In this view the order made by the Tribunal cannot be upheld.
56. We are also of the view that the Tribunal had 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 LR Act. We are also of the view that the order of the Tribunal which is inviolation of the principles of natural justice and is not a speaking order is liable to be quashed and a direction issued to re-determine the application of the respondent.
RE : POINT No. 757. Sri Iyengar has urged that the respondent cannot pursue his application for conferment of occupancy rights before there is restitution in his favour as ruled by a Full Bench of this Court in Balesha Rama Khot and Ors. v. Land Tribunal, Chikodi and Ors., 1978 (1) KLJ 116
58. Sri Subbanna relying on a Division Bench ruling of this Court in Nagappa Devanna v. Venkataramana Thimmanna and Anr., 1978 (1) KLJ 70 has urged that the respondent can pursue his application even before there is restitution in his favour as his dispossession was on and after 1-3-1974.
59. We have earlier held that the respondent was a tenant as on 1-3-1974 ; that he has been dispossessed on 25-4-1974 and there has been no restitution ever since then. Admittedly the respondent made his application on 27-8-1974 which we have held requires to be reconsidered. On these facts, the question is which of the two rival contentions is correct.
60. As we apprehend the question is no longer res integra and therefore, a detailed examination of the same is not called for.
61. In Nagappa Devanna's case, 1978 (1) KLJ 70 a Division Bench of this Court consisting of Govinda Bhat, C. J. and Lal; J. examining the very precise question expressed thus :
" .... So, what is relevant for the purpose of the Act and determination of the Tribunal is whether the lands in respect of which proceedings are taken under Chapter-Ill, were tenanted lands being cultivated personally by the alleged tenants immediately prior to 1-3-1974. If the land or lands were tenanted lands, to which Section 44 is attracted, such lands vest in the State Government on 1-3-1974. Section 45 provides that the land or lands which have vested in the State Government under Section 44 shall be registered in the name of the tenant as occupant of the land provided that person was cultivating the land personally immediately prior to the date of vesting viz., 1-3-1974. If there was any dispossession after 1-3-1974 by the landlord or by the main tenant or a sub-tenant, it is wholly immaterial and will not affect the right of the tenant personally cultivating the land immediately prior to 1-3-1974. Therefore, even assuming that the statement of the appellant was Correctly recorded by the Tribunal his application could not have been rejected on the ground that he had ceased to cultivate the land immediately prior to 10-8-1974."
In Balesha Rama Khot's case, 1978 (1) KLJ 116 the Full Bench noticing this enunciation distinguished and held, that did not govern cases of dispossession prior to 1-3-1974, that arose for determination in that case, which is not the position in the present case. We are, therefore, of the view that the question before us, is concluded by Nagappa Devanna's case, 1978 (1) KLJ 70. For the very reasons stated in that case, we hold that the respondent can pursue his application even before there is restitution of the lands in his favour.
RE. POINT NO. (8).
62. Sri Iyengar has urged that Writ Petition No. 8275 of 1984 filed by the respondent was wholly misconceived and the order made by the Learned Judge thereon was not sound in law.
63. Sri Subbanna has sought to support the order of the Learned Judge.
64. While Writ Petition Nos. 1078 of 1975, 5824 of 1978 and 20351 of 1981 were pending before this Court, there were complaints and counter complaints made by the respondent and the petitioner against each other before the jurisdictional police, which necessarily compelled one or the other police officer to intervene and make one or the other directions against one or the other as the circumstances justified. On that and the order made by the Tribunal on 23-9-1981 in his favour, the respondent approached this Court on 23-5-1984 in Writ Petition No. 8275 of 1984 for a writ or direction or mandamus to respondents 3 to 5 therein who are respondents Nos. 4 to 6 in the Writ Appeal before us not to give police protection to respondents 6 to 10 therein who are the appellants in Writ Appeal before us which was seriously contested by all of them. On 25-3-1985 Bopanna, J. has disposed of the said Writ Petition as noticed by us earlier.
65. When the respondent approached this Court in Writ Petition No. 8275 of 1984, the other Writ Petitions which were all closely inter-linked with the same were pending and were seized by a Division Bench of this Court to which the Learned Judge has also alluded. With respect to the Learned Judge, we are of the view that it was in the interests of parties and the interests of justice to have referred that Writ Petition also to be heard along with the other cases. But, on this score itself the order of the Learned Judge cannot be upset.
66. We have earlier held that the respondent had been dispossessed of the lands on 25-4-1974 from which day he was not in possession of them. In support of his case, the respondent strongly relied on the order made by the Tribunal on 23-9-1981 in his favour to which also we have taken exception.
67. The fact that the Tribunal had made a favourable order in his favour, did not enable him to interfere with the possession of the petitioner and rush to this Court for somewhat doubtful reliefs and prevent the Police authorities from exercising their lawful functions. At any rate on the basis of our earlier findings, it is clear that the Writ Petition filed by the respondent was wholly misconceived and he was not entitled for the relief granted by the Learned Judge. From this it follows that we cannot uphold the order made by the Learned Judge.
68. In the light of our above discussion, we make the following orders and directions :
(a) We dismiss Writ Petition No. 5824 of 1978 ;
(b) We declare that the respondent-R. Chinnaswamy Gounder 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 Writ Petition 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. 2/74 on its own merits and granting the same also in accordance with law.
(e) We quash the order of the Land Tribunal in ease No. KLRM 1700/74-75 dated 23-9-1981 (Annexure-B in Writ Petition 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 land lord, 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 observations made in this order.
(f) We allow Writ Appeal No. 828 of 1985, reverse the order of Bopanna, J. and dismiss Writ Petition No. 8275 of 1984 filed by the respondent.
69. Writ Petitions and Writ Appeal are disposed of in the above terms. But in view of the divided success and failure of the parties, we consider it proper to direct them to bear their own costs. We, therefore, direct the parties to bear their own costs.
ORDER ON THE ORAL APPLICATION MADE BY THE PETITIONERS IN WRIT PETITION No. 5824 OF 1978 FOR A CERTIFICATE OF FITNESS TO APPEAL UNDER ARTICLES 132 AND 134A OF THE CONSTITUTION Immediately after we pronounced our order in Writ Petition No. 5824 of 1978 and connected cases, Sri S. M. Babu, Learned Counsel for the petitioners makes an oral application for a certificate of fitness to appeal to the Supreme Court under Article 132 of the Constitution on the ground that the case involves a substantial question of law as to the interpretation of the Constitution as had been done by this Court earlier.
Sriyuths S. V. Jagannath, Government Advocate and T. R. Subbanna, learned Counsel for the respondents oppose the oral application made by the petitioners.
We have upheld the validity of Sections 44, 45 and 118-A of the Karnataka Land Reforms Act, 1961 as amended by Karnataka Act 1 of 1974, following a Division Bench ruling of this Court in Jagadguru's case, 1983 (1) KLJ 489 which is now affirmed by the Supreme Court. In view of the decision of the Supreme Court in Kumaraswamy's case, CA No. 3785-87/82 DD 5-12-1984, the questions on which a certificate of fitness to appeal was granted by this Court is of no avail to the petitioners. We see no merit in the oral application made by the petitioners. We, therefore, reject the oral application made by the petitioners against our decision in W.P. No. 5824 of 1978 for a certificate of fitness to appeal to the Supreme Court.