Karnataka High Court
Lawerence Mendonsa vs The Assistant Commissioner, ... on 24 March, 1999
Equivalent citations: 2000(4)KARLJ292, 1999 A I H C 2892, (2000) 4 KANT LJ 292
ORDER
1. This petition is directed against the order dated 27-5-1998 in C.DIS.REV.SR.1/87-88 passed by the respondent 1, the Assistant Commissioner, Kundapura, copy at Annexure-B to writ petition, confirming the order of grant dated 15-6-1972 made by the respondent 3, the Tahsildar, Karkala, copy at Annexure-A to writ petition, order dated 12-1-1993 in case No. RAP. 83 of 1989-90 passed by the respondent 2, the Special Deputy Commissioner in the second appeal, copy as at An-nexure-C to writ petition. Confirming the order dated 7-8-1996 in Rev. 43 of 1993 dismissing the revision petition of the petitioner and lastly the order dated 7-8-1996 in Revision Petition No. Rev. 43 of 1993, copy as at Annexure-D to writ petition, passed by the Karnataka Appellate Tribunal, the respondent 4 herein. Besides the petitioner had also challenged the original order dated 15-6-1972 in No. DIS. FDR 709/71-72 passed by the respondent 3, the Tahsildar, Karkala, copy as at Annexure-A to writ petition.
2. I heard the learned Counsel for the petitioner, Sri Sanath Kumar Shetty, the learned Counsel for the contesting respondent 5, Sri Chan-dranath Ariga and the learned Additional Government Advocate Sri M.N. Ramanajaneya Gowda, appearing for the respondents 1 to 3, the Revenue Authorities in the hierarchy and the respondent 4, the Karnataka Appellate Tribunal.
3. The matter requires narration of the facts of the case in brief to deal with the matter effectively and the same is as hereunder:
That, the respondent 5 was the wargadar of kadim land in S. Nos. 87/8, 87/9 and 87/11 of Nitte Village and an extent of 5 acres 27 cents of land in S. No. 669/1 was the kumki land, which was enjoyed by the respondent 5 as the wargadar of the above warg lands (henceforth referred to for convenience as the 'Subject Land'). That, the said warg lands were leased originally to one Estine Mendonsa by the respondent 5. She was also enjoying the kumki land for better cultivation of the warg land tenanted. That, the said Estine Mendonsa had filed Form 7 before the jurisdictional Land Tribunal for grant of above warg lands and the above three items of warg lands accordingly came to be granted to her and that the petitioner who is none other than the son of the said Estine Mendonsa claimed that the subject land was also enjoyed by his mother as the kumki land to the warg lands granted to her by way of occupancy right, no matter that the same was subsequently granted to the respondent 4 separately by the respondent 3, the Tahsildar without notice to her.
That, the respondent 3, the Tahsildar had granted the subject land on 15-6-1972 in case No. DIS.KDR 709/71-72 to the respondent 5 and also issued A saguvali chit to her. Having been aggrieved thereto, Estine Mendonsa had filed an appeal in C.DIS.REV.SR. 1 of 1987-88 before the Assistant Commissioner challenging the above grant and that the said appeal came to be dismissed on 27-5-1989 and that thereafter the said order was challenged before the Special Deputy Commissioner by the petitioner, he being the successor-in-title as the said Estine Mendonsa died in the meantime. That, the second appeal also came to be dismissed by the Special Deputy Commissioner and thereafter, the petitioner herein filed a revision petition in Rev. No. 43 of 1993 before the Karnataka Appellate Tribunal and that the Karnataka Appellate Tribunal on reliance being placed on the reported decision of the Apex Court in the case of Puttahonnamma v Gangadhara Murthy, dismissed the revi-
sion petition as the one not maintainable. Therefore, the petitioner is before this Court in challenging all the above three orders.
4. The learned Counsel for the petitioner, Sri Sanath Kumar Shetty had taken me through the above three impugned orders and the original grant order made by the Tahsildar at the first instance. In urging the grounds made out in the writ petition, he had argued that the Tahsildar would not have granted the subject land by way of grant as the subject land was enjoyed by the original leaseholder, Estine Mendonsa and that the Land Tribunal was also pleased to grant to her by way of occupancy right all the three warg lands. According to Sri Shetty, kumki right in the subject land had to go along with the tenancy right in the warg lands as the original leaseholder Estine Mendonsa was aiso enjoying the subject land as kumki land to the warg lands leased. It was also argued by him that after the demise of his mother, the petitioner continued to hold, possess and enjoy the same himself.
5. In this context, he had also taken me through the provisibns under Section 79 of the Land Revenue Act. While adverting to sub-section (2) of the said Section of the Act, it was argued by Sri Shetty that the kumki right had since been continued beyond the year 1964, the kumki right in the subject land had to be enjoyed by the original leaseholder as the same had to go along with the main warg land leased by the respondent 5 by way of chalageni tenancy. It was also argued by Sri Shetty that when the original leaseholder Estine Mendonsa was a kumkidar of the subject land having succeeded to the rights of the original owner, the respondent 5 herein, the respondent 3, the Tahsildar would not have granted the subject land, particularly when she was not heard in the matter at all. Incidentally, he had also pointed out that all the authorities below, particularly, the respondents 1 to 3 did not understand that the kumki right was in the hands of the original leaseholder and they had thus wrongly held that the subject land could be granted to the respondent 5 independently. Incidentally, it was also pointed out by Sri Shetty that the petitioner was obliged to file the revision petition before the Karnataka Appellate Tribunal, for the reason that at the point of time of filing the revision petition the same was very well maintainable and that when the matter was ripe to be disposed of by the Karnataka Appellate Tribunal, the decision of the Apex Court in the Putfahonamtna's case, supra, came to the effect that when the second appeal was filed, there could not be a further revision under Section 56 of the Revenue Act before the Karnataka Appellate Tribunal as against the order in the second appeal. Therefore, he prayed that the impugned orders passed by the said authorities be quashed in allowing the writ petition and further setting aside the order of grant of the subject land made by the respondent 3, the Tahsildar to the respondent 5.
6. In support of his argument, Sri Shetty had also cited before me the following three decisions:
(1) AIR 1996 SCI 119 (Sic), (2) State of Mysore and Others v K. Chandrasekhara Adiga and Another1, (3) Babi D'Souza v Syndicate Bank.
7. The learned Counsel for the contesting respondent 5, Sri Chan-dranath Ariga on the other side argued that the respondent 5 being the wargdar was enjoying the kumki right on the subject land and as per Section 40 of the Standing Orders of the Board of Revenue, Volume (1), kumki right had to be enjoyed by the wargdar and the respondent 5 being the 'moolagenidar' had to be treated in synonym with the wargdar and as per sub-section (4) of Section 40 of the said Standing Order, the kumkidar is a person, who is entitled to for kumki privilege and kumki-dar is necessarily either the registered holder, walawargdar or moolagenidar of the land to which the kumki privilege was attached to, and it is therefore his argument that the respondent 5 being the kumkidar had applied for grant of that land as long back as in the year 1972 and it is thus the respondent 3, the Tahsildar had rightly granted the subject land to the respondent 5 in passing the order at Annexure-A on 15-6-1972 and further issuing saguvali chit in the name of his party. Incidentally, he had also pointed out that the original leaseholder, Estine Mendonsa was granted with occupancy right only in respect of the warg lands that too subsequent to the above order. The further submission of Sri Ariga in this regard was that Section 40(4) of the Standing Order, kumki right was extinguished and as such as on the date of the grant of the occupancy right to the original leaseholder there was no kumki right to go to her benefit. Therefore, he prayed that the instant writ petition be dismissed.
8. In the instant case in hand, it is not in dispute that the subject land was a kumki land and that kumki right thereon had to go with the main land that was originally owned by the respondent 5. It is also not in dispute that the original three items of lands to which the subject land was attached to (as a kumki land) was leased by the respondent 5 in the name of the mother of the petitioner, Estine Mendonsa and that obviously mean that the kumki land that was in the hands of the respondent 5 had to go along with the three warg lands leased by her to the said Estine Mendonsa. The learned Counsel for the respondent 5 also argued that the kumki right was only to be enjoyed by the wargdar, walawargdar or moolagenidar as per sub-section (4) of Section 40 of the Standing Orders of the Board of Revenue. It was further argued by him that Estine Mendonsa was only a chalagerni tenant and as such the 'question of kumki right to her did not arise at all and that under Section 40(4) of the Standing Order, the kumki right was also extinguished. I do not think that argument of Sri Ariga can be endorsed by this Court in view of the provision under sub-section (2) of Section 79 of the Land Revenue Act. In this context, I feel it proper to quote the said provision of law, the same reads as hereunder:
"(2) Notwithstanding anything contained in sub-section (1) but subject to such general or special orders that may be issued by the State Government from time to time, the privileges that are being enjoyed either by custom under any order such as privileges in respect of kumki lands, Bane lands and kane lands in South Kanara District, betta lands and hadi lands in North Kanara District, kan and soppina betta lands in Mysore Area. Jamma and bane in Coorg District and (Motasbal lands) in Hyderabad Area shall continue".
9. From the above, it is clear that the kumki right on the kumki land was continued under the Land Revenue Act. It could not therefore be disputed, therefore that the kumki right in the subject land had to go along with the rights in the warg land and that right admittedly in the warg land was transferred to the above said Estine Mendonsa by way of leasehold right. Hence, it was obvious that the kumki right in the subject land was also transferred to be enjoyed by the said Estine Mendonsa along with the warg land in three survey numbers as the kumki right was continued to be enjoyed under Section 79(2) of the Karnataka Land Revenue Act, 1964.
10. It is also an admitted fact that Estine Mendonsa had filed Form 7 claiming occupancy right in respect of warg land much earlier to the grant of the subject land to the respondent 5 by the respondent 3. If the kumki right was enjoyed by the respondent 5, she being the wargdar of the adjacent 3 survey numbers and that warg lands were transferred by way of leasehold right to the mother of the petitioner by creating cha-lageni right in her name and favour, it obviously means that the kumki right of the respondent 5 also stood transferred to the petitioner's mother since the kumki right had to go along with warg land as a shadow follows the man. This in fact is the view of the learned Single Judge of this Court in a decision in the case of Mahalinga Maniyani v State of Karnataka and Others. In para 7 of the judgment, the learned Single Judge had held as hereunder:
"7. So Kumki privilege a tenant enjoyed in accordance with law is not only saved under Section 43 but also under Section 44 of the Act, and would continue to be enjoyed by him during the interregnum between the date of vesting under sub-section (1) of Section 44 of the Act and the date of conferment of occupancy rights and even thereafter in accordance with law".
11. In the above case, the circular dated 9-4-1992 issued by the Government to the effect that the tenant who was conferred with occupancy right would not be entitled to kumki privilege attached to the land granted by the Land Tribunal came to be challenged.
12. In this context, it is relevant to quote what the learned Single Judge observed in paras 8 and 9 of the said judgment. The same read as hereunder:
"8. It is necessary to observe that sub-section (2) of Section 79 of the Karnataka Land Revenue Act inter alia protects the kumki . privilege, subject to general or special orders of the State Government. The kumki privilege could only be extinguished in the manner provided in Section 79(2) of the Karnataka Land Revenue Act. Only by reason of vesting of the land under sub-section (1) of Section 44 of the Karnataka Land Reforms Act, the kumki privilege does not get extinguished as sought to be made-out by the impugned circular at Annexure-B. It is unnecessary to examine whether in other cases of disposal of the land coming within the ambit of Karnataka Land Reforms Act, kumki privilege is available.
9. Annexure-B (dated 9-4-1992) is apparently contrary to the specific intendment of Sections 43 and 44 of the Act and is ultra vires. Annexure-B which threatens a privilege protected by law cannot continue to exist and should be quashed".
13. Therefore, it cannot be said that the kumki right in the kumki land can be enjoyed exclusively by the respondent 5 devoid of the warg lands to entitle her by way of grant of the same as the respondent 3 did in granting the same to her by his order dated 15-6-1972, copy as at Annexure-A to writ petition. Sub-section (4) of Section 40 of the Standing Orders, the kumki land described as the Government waste land situated within 100 yards of the assessed land included in a holding formed and kumkidar is a person who was entitled to enjoy the kumki privilege. Section 40 of the Standing Order of the Board of Revenue, Volume (1) reads as hereunder:
"40. Modifications in the above rules in their application to South Kanara.-
Notes.-(1) "Warg" means the "registered holding" and wargdar, the registered holder. Muldar is a synonym for wargdar.
(2) Walawargdar: "wala" means "under". The tenure of a walawargdar is permanent; he has absolute right to the land. He is responsible to the registered holder for the payment of the assessment and pays it to him for payment to the Government. This payment is called walatirvai. A walawargdar does not pay rent to the registered holder.
(3) A moolagenidar is a lessee of the registered holder. The lease is called mulgeni and the registered holder's right muli. A mulgeni-dar has a perpetual lease and is not removable by the registered holder so long as he pays rent regularly to him and does not break any of the conditions of the lease.
(4) Kumki land is Government waste land within 100 yards of assessed land included in a holding formed prior to fasli 1276. Kumkidar is a person who is entitled to enjoy the kumki privilege.
A kumkidar is necessarily either the registered holder, walawargdar or mulgenidar of the land to which the kumki privilege is attached.
(5) A kumakidar's privileges in the land are grazing his cattle, cutting and collecting leaves, timber and other forest produce for his agricultural and domestic purposes.
(6) Hakkal cultivation is temporary cultivation of dry crops on Government waste land and is liable to be charged (hakkal) except within kumaki limits".
14. To me it appears therefore that sub-sections (4) and (5) of the above Standing Orders have to be read together to find out the meaning of the 'kumki right' and further to find out as to how and why it was enjoyed. From the above it is crystal clear that the kumkidar's privilege in the kumki land are grazing his cattle, cutting and collecting leaves, timber or other forest produce for his agricultural and domestic purpose, and that has to go along with the right in the warg land for better cultivation and enjoyment of that warg land and that being so, I am not left with any doubt that the kumki land cannot be independently enjoyed, but to be enjoyed along with the main land or the warg land. If kumki land is only a privilege to be enjoyed by a person who cultivated the warg land, it is obvious that in the instant case in hand, the kumki right was vested in the leaseholder, Estine Mendonsa when the original lease was made. If it is true that the warg land was leased by the respondent 5 to the original leaseholder. Estine Mendonsa and the kumki right in the subject land had to go along with the right of enjoyment of the warg land, it is obvious that the kumki right in the subject land was also vested in the said Estine Mendonsa.
15. It is the case of the petitioner before this Court that in passing the impugned order at Annexure-A, the original leaseholder, Estine Mendonsa was not at all heard. If the kumki right was vested in Estine Mendonsa at the earlier point of time of grant to the respondent 5 in the year 1972, it is obvious that the land was granted to the respondent 5 without there being any notice to the said Estine Mendonsa and as such on that short ground alone that order has to go in its entirety. That is how it occurs to me in the facts and circumstances of the case. That in fact was the case that was made out by the petitioner in filing the appeal before the Assistant Commissioner, but the Assistant Commissioner having not appreciated that basic question had confirmed the order of the Tahsildar in dismissing the appeal. That was the position equally even when the second appeal was before the respondent 2, the Special Deputy Commissioner. Therefore, in my considered view, the original order passed by the respondent 3, the Tahsildar in granting the subject land to the respondent 5 by his order dated 15-6-1972, copy as at Annexure-A to writ petition, and further in issuance of consequential saguvali chit were totally bad and liable to be quashed. It also appears to me that both the authorities below i.e., the respondents 1 and 2 herein had entered into an error in confirming the order of the Tahsildar granting kumki land by way of grant to the respondent 5.
16. Now I turn to the impugned order passed by the Karnataka Appellate Tribunal at Annexure-D to writ petition. In view of the circumstances that at the relevant point of time when the revision petition came to be heard finally by the Karnataka Appellate Tribunal, there came the decision of the Supreme Court to say that the revision as against the order passed in the second appeal was not maintainable; it is obvious that the Karnataka Appellate Tribunal had passed the impugned order as at Annexure-D rightly holding that the revision petition was not maintainable. I don't think the petitioner can make out any grievance as against that order of the Karnataka Appellate Tribunal, for law laid down by the Supreme Court is the law of the land under Article 141 of the Constitution of India.
In that view of the matter, I pass the following:
ORDER
1. The impugned order dated 27-5-1989 in C.DIS.REV.SR. 1 of 1987-88 passed by the respondent 1. Assistant Commissioner, copy as at An-nexure-C to writ petition, confirming the order of grant made by the respondent 3, the Tahsildar, is quashed, so also the further orders of the respondent 2, the Special Deputy Commissioner confirming the order of the Assistant Commissioner is also quashed. Furthermore, the impugned order dated 15-6-1972 passed by the Tahsildar in Case No. DIS.KDR. 709/71-72 granting the subject land to the respondent 5 also stands quashed.
2. The matter is now remitted to the respondent 3, the Tahsildar to pass a considered order strictly in accordance with law and further in the light of the observation of this Court on the point of kumki right vis-a-vis the tenancy right in the matter of grant of the subject land to the respondent 5 after issuing notice to the petitioner herein and after he being heard. Let him do that within a period of three months from the date of communication of this order. Such a course this Court had to recourse to, since the original application filed by the respondent 5 is not before this Court and that the considered order thereon has to be passed in the circumstance by the respondent 3 to dispose of the same, no matter it may be a matter of routine and course of event for him to do.
The writ petition therefore succeeds and accordingly stands allowed in the above terms. Rule issued made absolute. No cost.
The Registry is directed to forward a copy of the order herein passed to the respondent 3, the Tahsildar, Karkala for compliance.