SHAMBHU ESHWAR HEGDE v. LAND TRIBUNAL KUMTA — 1979 DIGILAW 137 (KAR)

( 1 ) IN this petition under Article 226 of the Constitution of India, the petitioner who is an assignee of the interest of the original permanent tenant, has challenged the validity of the order dated 29-7-1976, passed by the Land Tribunal, Kumta, in LRT. SR. 12418, 143,63, 14473, 14276, 16021 and 7224 granting the occupancy right in favour of the second respondent in respect of the lands in question bearing survey Nos. 367/1, 367/3, 367/4, 367/5, 367/6 365/6 and 400 of Muroor village, Kumta taluk. ( 2 ) THE second respondent was the mulgeni tenant of the lands in question and in that capacity, he was in possession and personally cultivated the said lands on 1-3-1971 an which date, the Karnataka Act No. 1 of 1974 came into force radically amending the Karnataka Land Reforms Act, 1961 (hereinafter referred to as 'the Act' ). The petitioner is the son-in-law of the second respondent. The second daughter of the 2nd respondent came to be married to the petitioner on 18-3-1974. After the marriage, the petitioner started living with the second respondent, who through a registered gift deed dated 15 4-1974 transferred his mulgeni right in respect of the lands in question in favour of the petitioner. ( 3 ) IN pursuance of the Karnataka Act No. 1 of 1974, the 2nd respondent and Iris wife and the two daughters made separate applications in Form No. 7 in respect of the lands in question for being registered as occupants. The petitioner also made an application in Form No. 7 for being registered as an occupant of the lands in question, on the basis of the gift-deed executed in his favour by the 2nd respondent transferring his Mulgeni right in the said lands. The Land tribunal clubbed all these applications and held a common enquiry and has passed a common order dated 29-6-1976. The Tribunal rejected the application of the petitioner and also those of the wife and the two daughters of the second respondent and granted the occupancy right in favour of the 2nd respondent. The Land tribunal clubbed all these applications and held a common enquiry and has passed a common order dated 29-6-1976. The Tribunal rejected the application of the petitioner and also those of the wife and the two daughters of the second respondent and granted the occupancy right in favour of the 2nd respondent. ( 4 ) SHRI T. S. Ramachandra the learned Counsel appearing for the petitioner contended that in view of the provisions contained in section 21 (1) and section 44 (2) (a) (e) and (g) of the Act, the transfer of Mulgeni right effected by the second respondent through the gift deed dated 15-4-1974 in favour of the petitioner was a vafid transfer and as such, the petitioner was entitled to be registered as an occupant of the lands in question and not the second respondent. He also contended that the Tribunal was not correct in holding that the petitioner was not entitled to be registered as an occupant of the lands in question on the grounds that the gift-deed dated 15-4-1974, was executed after 1-3-1974 and as such, the petitioner was not the permanent tenant and was not cultivating the lands in question personally on 1-3-1974. He placed reliance on the provisions of S. 61 of the Act, which prohibits the transfer after the registration of occupancy right and as such, it was contended that the transfer in the instant case had taken place before granting of occupancy right and therefore it was a valid transfer. He also further relied upon the provisions of Ss 64 and 19 of he act and submitted that the said provisions place certain restrictions regarding the future acquisition of land. A reliance was also placed by him on S. 43 of the Act. He also further relied upon the provisions of Ss 64 and 19 of he act and submitted that the said provisions place certain restrictions regarding the future acquisition of land. A reliance was also placed by him on S. 43 of the Act. ( 5 ) ON the contrary, it was submitted on behalf of the 2nd respondent that the transfer by way of gift having taken place subsequent to 1-3-1974 in favour of the petitioner, such a transfer of Mulgeni rights did not enable the petitioner to claim the occupancy right inasmuch as an interest in the lands in question came to be created in the petitioner for the first time after 1-3-1974 and as such, he was not cultivating the lands in question on 1-3-1974 as a tenant as his right is based only on the gift deed of 15-4-1974 and as such, the Tribunal was right in rejecting the application of the petitioner. ( 6 ) HAVING regard to the respective contentions of the parties, the question that arises for consideration is, as to whether the petitioner was entitled to be registered as an occupant of the lands in question, in pursuance of the gift-deed dated 15-4-1974 executed by the 2nd respondent transferring his Mulgeni right in the lands in question in favour of the petitioner. ( 7 ) SRI Ramachandra relied upon the provisions contained in Sections 61, 64 and 19 of the Act, which have no bearing on the question involved in this case. Similarly, the provisions contained in S. 44 (2) (a) are also not relevant to the question involved in the case. As far as S. 43 of the Act is concerned, it may be noticed that the said section does not, in any way, enlarge the rights and privileges of any tenant ; on the contrary, it provides that the rights and privileges of any tenant under any usage or law for the time being in force or arising out of any contract, grant, decree or order of a Court, shall not be limited or abridged, save as otherwise provided under the Act. Therefore, it is clear that the rights and privileges of any tenant shall not be limited or abridged except in the manner as provided under the Act. That being so, Section 43 of the Act, also does not help the petitioner. Therefore, it is clear that the rights and privileges of any tenant shall not be limited or abridged except in the manner as provided under the Act. That being so, Section 43 of the Act, also does not help the petitioner. ( 8 ) IT is not in dispute that the second respondent was in possession of the land in question, as a Mulgeni tenant on 1-3-1974. As per the definition of the expression 'permanent tenant' provided in section 2 (A) (23) of the Act, means, a tenant who cultivates land personally : (a)------------------------------------ (d) who holds land as mulgenidar, thus, it is clear that the 2nd respondent was the permanent tenant of the lands in question. It is also not in dispute that he was cultivating the lands in question as a permanent tenant on 1-3-1974. The contention of the petitioner is that sec. 21 of the Act which prohibits sub-division or sub-letting of a land held by a tenant or assignment of any interest therein, also provides that nothing in the said sub-section shall affect the rights if any of a permanent tenant; and as such, it was contended that it was open for the 2nd respondent to assign his interest in the lands in question to the petitioner on 15 4-1974 under the gift-deed and consequently, the petitioner was entitled for the grant of occupancy right. The relevant portion of Section 21 (1) of the Act, reads as follows :"sub-division, sub-letting and assignment prohibited.- (1)No sub-division or sub-letting of the land held by a tenant or assignment of any interest therein shall be valid : provided that nothing in this sub-section shall affect the rights if any of a permanent tenant:"proviso to sub-section (1) of section 21 of the Act, as quoted above, provides that nothing in the sub-section shall affect the rights if any of a permanent tenant. There is no other provision under the Act enabling a permanent tenant to transfer his interest of a permanent tenancy to any other person either prior to 1-3-1974 or subsequent to the said date. It may be that such a right is a property within the meaning of section 6 of the Transfer of Property Act, capable of transfer. There is no other provision under the Act enabling a permanent tenant to transfer his interest of a permanent tenancy to any other person either prior to 1-3-1974 or subsequent to the said date. It may be that such a right is a property within the meaning of section 6 of the Transfer of Property Act, capable of transfer. But, in the instant case, the question that arises for consideration is as to whether such a right is transferable under the provisions of the Act, and if so, whether a transferee of such a right acquires the right to get himself registered as an occupant of the land under the provisions of the Act. ( 9 ) IN this connection, it is very pertinent to notice that section 44 of the act, which provides for vesting of the lands in the State Government, sub-section (1) of the said Section specifically provides that;"all lands held by or in the possession of tenants. . . . 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. "thus, it is clear that with effect from 1-3-1974, the lands in question held by the 2nd respondent as a permanent tenant stood transferred and vested in the State government. Now it has to be seen as to what are the rights of the tenants that have been saved under the Act, after such a transfer and vesting of the lands in state Government. Section 44 (2) (e) of the Act, provides that it is open for the state Government to take possession of such lands forthwith, after removing any obstruction which may be offered with an exception that the State Government sha 1 not dispossess any person of any land in respect of which it considers after such enquiry as may be prescribed that he is prima facie entitled to be registered as an occupant under Chapter HI. Section 45 (1) of the Act further provides that it is only such persons who were either permanent tenants, protected tenants or other tenants of the lands before the date of vesting aud have been cultivating such lands personally, alone were entitled to be registered as occupants with effect on and from the date of vesting. Section 45 (1) of the Act further provides that it is only such persons who were either permanent tenants, protected tenants or other tenants of the lands before the date of vesting aud have been cultivating such lands personally, alone were entitled to be registered as occupants with effect on and from the date of vesting. Section 44 (2) (g) of the Act specifically provides that the 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 the act. The sub-clause also provides that 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. Thus, from the aforesaid provisions contained in section 44 (2) (g) of the Act, it is clear that the permanent tenant or other tenants shall be entitled to such rights or privileges and shall be subject to such conditions as are provided by or under the Act. The Act provides for grant of occupancy right only to such tenants including the permanent tenants who were cultivating the land in that capacity, personally, on the date of vesting. In this connection, Section 45 (1) of the Act, may be noticed :"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 sublet, 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. "thus, from the aforesaid provision, it is clear that any 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 land or lands of which he was a permanent tenant, protected tenant or other tenant or a sub-tenant before the date of vesting and of which he has been personally cultivating. In order that a person to be entitled to be registered as an occupant, he must have been the tenant of the land before the date of vesting and he mast have been cultivating the same personally as such tenant on the date of vesting. I hus, after the vesting, this is the only right that has been given to the tenant including the permanent tenant. It is therefore clear that after the date of vesting, the only right that was possessed by the 2nd respondent in the lands in question was, to get himself registered as an occupant. The right of getting himself registered as an occupant being the one created under the Act, which does not contain any other provision providing for transfer of such a right, cannot he held to be transferable' in view of the other requirements contained in Section 45 of the Act Further there is a positive provision contained in section 44 (2) (g) of the Act, which is to. the effect that the tenants shall be entitled only to such rights or privileges and shall be subject to such conditions as are provided by or under the Act. Hence, i hold that the right possessed by the 2nd respondent after the date of resting (after 1-3-1974) was not transferable by the 2nd respondent and as such, the petitioner did not acquire the right to get himself registered as an occupant. Any other interpretation of the provisions contained in section 44 (1) (2) (e) and (g) and 45 (1) read with section 21 (1) of the Act, would defeat one of the dominant objects of the Act to confer ownership on tenants. The expression 'tenant' as defined in the Act, under Section 2 (A) (34) does not take into its fold the person who has become an assignee from the original tenant subsequent to the date of vesting. The expression 'tenant' as defined in the Act, under Section 2 (A) (34) does not take into its fold the person who has become an assignee from the original tenant subsequent to the date of vesting. ( 10 ) EVEN assuming for the sake of argument that the transfer of interest by the 2nd respondent in the lands in question, in favour of the petitioner, was a valid transfer, even then he could not have been registered as an occupant of the lands in question inasmuch as before the date of vesting, he was not a permanent tenant or any other tenant of the lands in question nor he was cultivating the lands in question personally in the capacity of a permanent tenant or other tenant on the date of vesting. In the absence of these two essential ingredients, the petitioner could not have been registered as an occupant of the lands in question. The provisions contained in Section 44 (2) (g) of the Act are clear and are unambiguous. It may also be further noticed that Section 3 (2) of the Act, provides that the provision of Chapter V of the transfer of Property Act, 1882, shall, in so far as they are not inconsistent with the provisions of the Act, apply to the tenancies and leases of lands to which the act applies. That being so, the rights of the tenant as provided under the Act, will prevail over the provisions of Transfer of Property Act; and as such, whatever the rights that are provided in the Act, win only be available to the 2nd respondent. Thus, it is clear that the petitioner did not acquire the right to get himself registered as an occupant by reason of the gift deed dated 15-4-1974 executed by the 2nd respondent in favour of the petitioner transferring his interest as permanent tenant of the lands in question. ( 11 ) SHRI Ramachandra also relied upon the decision of this Court rendered in Muniswamappa v. A. Lakshmaiah, RSA. 98 of 1964 connected with RSA 99 of 1964. In the said decision, on consideration of the scheme of the Mysore (Personal and Miscellaneous) Inams Abolition Act, 1954, this Court came to the conclusion that the right of the Inamdar entitling him to be registered as an occupant of the land's other than those mentioned under Cls. (i), (ii) and (iii) of sub-sec. In the said decision, on consideration of the scheme of the Mysore (Personal and Miscellaneous) Inams Abolition Act, 1954, this Court came to the conclusion that the right of the Inamdar entitling him to be registered as an occupant of the land's other than those mentioned under Cls. (i), (ii) and (iii) of sub-sec. (1) of S. 9 of the aforesaid Inams Abolition Act, is property capable of transfer. In the said case, the right and1 interest of the inamdar was transferred and not that of the tenant and the question that was involved was as to whether the transfer of interest effected by the inamdar after the vestinf was valid in view of the provisions contained in Section 9 of the Inams Abolition Act, and it was held that the inamdar was entitled to be registered as an occupant in respect of the lands other than those mentioned in Section 9 (1) (i) (ii) and (iii) of the said Act, and as such, the said right was property capable of transfer. That being so, the said decision cannot be of any assistance to the petitioner, as in the instant case, the question that is involved is about the rights and privileges of the tenants after the date of vesting as discussed in the preceding paragraphs. Further, what applies to the transfer of interest effected by the inamdar will not be applicable to the transfer of interest effected by the tenant as there are different provisions contained in the Inams Abolition Act itself in this regard. ( 12 ) FOR the reasons stated above, this petition fails and the same is dismissed. --- *** --- .