Karnataka High Court
Shankar And Another vs Madhukar Bandopant Kulkarni And ... on 31 January, 2000
Equivalent citations: ILR2000KAR1019, 2000(2)KARLJ422, 2000 A I H C 2021, (2000) 2 KANT LJ 422
Author: Mohamed Anwar
Bench: Mohamed Anwar
ORDER
1. Petitioners are plaintiffs in O.S. No. 397 of 1993, who have filed the said suit against respondents-defendants for the relief of specific performance.
2. The plaintiffs' case is that they had been cultivating the agricultural lands belonging to the defendants and that the latter having entered into an agreement of sale of the said land dated 16-7-1984 for valuable consideration were not willing to execute the sale deed in their favour in terms thereof. During pendency of the suit, LA. No. 4 under Section 133 of the Karnataka Land Reforms Act ("the Act" for short) was made by the plaintiffs to stay further proceedings in the suit as they had made an application to the concerned Deputy Commissioner on 15-12-1998 in view of the relevant amended provisions of the Act seeking grant of occupancy rights with respect to the suit land. The Court below has rejected that application of the petitioners on the ground that Section 133 of the Act will not be attracted in respect of an application made to the Deputy Commissioner under the amended provisions. On going through the relevant provisions of the Act, I am satisfied that the Court below is legally justified in passing the impugned order.
3. The amendment introduced in the Act of 1961 by the Karnataka Land Reforms (Amendment) Act, 1997 ("Act of 1997" for short) on which reliance was sought to be placed by the petitioners-plaintiffs in support of their said application made before the Trial Court is as reproduced below:
"2. Insertion of new Section 77-A.--After Section 77 of the Karnataka Land Reforms Act, 1961 (Karnataka Act 10 of 1962), the following shall be inserted, namely.-
"77-A. Grant of land in certain cases.--(1) Notwithstanding anything contained in this Act, if the Deputy Commissioner, or the Special Deputy Commissioner is satisfied, after holding such enquiry as he deems fit, that a person,
(i) was, immediately before the First day of March, 1974, in actual possession and cultivation of any land not exceeding one unit, which has vested in the State Government under Section 44, and
(ii) being entitled to be registered as an occupant of such land under Section 45 or 49, has failed to apply for registration of occupancy rights in respect of such land under subsection (1) of Section 48-A within the period specified therein, and
(iii) has continued to be in actual possession and cultivation of such land on the date of commencement of the Karnataka Land Reforms (Amendment) Act, 1997, he may grant the land to such person subject to such restrictions and conditions and in the manner, as may be prescribed.
(2) The provisions of sub-sections (2-A) and (2-B) of Section 77 and the provisions of Section 78 shall apply mutatis mutandis in respect of the grant of land made under sub-section (1)".
For proper appreciation of the contention of the learned Counsel for the petitioner, and the validity or otherwise of the impugned order, it is necessary to advert to the material provision of Section 133 of the Act of 1961, which is extracted below:
"133. Suits, proceedings, etc., involving questions required to be decided by the Tribunal.--(1) Notwithstanding anything in any law for the time being in force,--
(i) no Civil or Criminal Court or officer or authority shall, in any suit, case or proceedings concerning a land decide the question whether such land is or not agricultural land and whether the person claiming to be in possession is or is not a tenant of the said land from prior to 1st March, 1974;
(ii) such Court or officer or authority shall stay such suit or proceedings insofar as such question is concerned and refer the same to the Tribunal for decision;
(iii) xxx xxx xxx xxx
(iv) the Tribunal shall decide the question referred to it under clause (1) and communicate its decision to such Court, officer or authority. The decision of the Tribunal shall be final.
(2) Nothing in sub-section (1) shall preclude the Civil or Criminal Court or the officer or authority from proceeding with the suit, case or proceedings in respect of any matter other than that referred to in that sub-section".
4. On a combined reading of the aforestated material provisions of the Act, the legal position which emerges is that by Section 77-A of the amended Act, the Deputy Commissioner is not empowered to grant occupancy rights with respect to the land of which a person claims to be a cultivator, in that, Chapter III of the Act deals with conferment of ownership on tenants of the lands through the grant of occupancy right with respect thereto in the first instance; whereas Section 77-A, simply empowers the Deputy Commissioner or the Special Deputy Commissioner to "grant the land" to a person who fulfills the requirement of sub-clause (1)(i) to (iii) of this section. The grant of land within the meaning of this section, i.e., 77-A, cannot be equated to the grant of occupancy rights in the manner contemplated by Chapter III of the Act. Furthermore, the present suit of the petitioner being the suit for specific performance, no question of tenancy in respect of the land in question needs be decided by the Trial Court for grant of that relief to him. Therefore, by the mandate of sub-section (2) of Section 133, the Trial Court is bound to proceed with the trial of the suit and dispose it of on its merit. This apart, Section 133 comes into play only when a question of tenancy raised in a suit proceeding is referred to the Tribunal for its decision enabling the Court to decide the suit effectively on its merits. All these ingredients are absent in the present suit and, therefore, no fault could be found with the impugned order.
Hence, the revision is dismissed.