VENKATAPPA NINGAPPA v. STATE OF KARNATAKA — 1981 DIGILAW 16 (KAR)

K. BHIMIAH, J. ( 1 ) THIS is a tenant's writ petition challenging the order passed by the land Tribunal, rejecting his application filed in form No. 7 for grant of occupancy rights in respect of the 1961 (10 of 1962), Ss. 4 (b) and 39 (2) land comprised in Sy. No. 80/1 of mugalkhed village in Mudhol taluk. ( 2 ) THE petitioner applied for grant of occupancy rights in respect of the aforesaid land. The Land Tribunal, as required by law, got the notices served on the interested parties and held enquiry, examined the parties. Upon consideration of the evidence, the land Tribunal was of the view that the petitioner did not cultivate the land as a tenant and in that view of the matter rejected his application filed in form No. 7 for grant of occupancy rights. ( 3 ) THE facts of the case as disclosed from the records are that the petitioner cultivated the land on the basis of a 'badige Kararu' (agreement of hired labour) during the year 1965-66, 1966-67 and 1967-68. He entered into an agreement to purchase the land for a consideration of Rs. 10,000 in the year 1968-69 and had paid an advance of Rs. 2,000 to the 3rd respondent. His name came to be entered in the record of rights and pahanis right from the year 1968-69 as tenant till 1976-77. The land in question is in the ownership of the 3rd respondent. He resides in gandhi Chowk at Dharwar, a place separated by a distance of 120 miles from where the land is situated. ( 4 ) MR. A. V. Albal, learned counsel for the petitioner firstly, contended that the petitioner had become a deemed tenant under S. 4 of the Karnataka land Reforms Act, 1961 (to be called the 'act' ). He urged that even prior to the execution of the agreement to sell in the year 1968-69, he was cultivating the land on the so called receipts for labour. He further urged that the petitioner did not cultivate the land under the personal supervision by the 3rd respondent or his wife. He cultivated the land independently. He urged that even prior to the execution of the agreement to sell in the year 1968-69, he was cultivating the land on the so called receipts for labour. He further urged that the petitioner did not cultivate the land under the personal supervision by the 3rd respondent or his wife. He cultivated the land independently. Secondly, he contended that by an agreement of sale, the petitioner was lawfully inducted on the land for cultivating it and if at any point of time the said agreement could not be enforced, the relationship between the petitioner and 3rd respondent would be that of tenant and landlord. Thirdly, he contended that the averment he has made in the writ petition regarding delay was due to his ignorance and illiteracy, and an erroneous statement has crept in to the averments in the writ petition and has requested to take a lenient view of the matter. ( 5 ) ON the other hand, Mr. T. S. Ramachandra, learned advocate for the 3rd respondent, contended that the writ petition is liable to be dismissed in limine since the petitioner has not approached this Court with clean hands. He pointed out that the petitioner knew the pronouncement of the impugned order dated 10-2-76, in view of the fact that he had stated so in his plaint filed in O. S. No. 51 of 1976. Secondly, he contended that the petitioner who is cultivating the land under an agreement of sale is not entitled to claim to be a deemed tenant. His remedy is one of enforcing specific performance, regarding which he has already filed the aforesaid suit. Lastly, he, contended that the entries in the record of rights do not establish his tenancy, since he cultivated the land under an agreement to sell. Thus he explained the existence of the entries in the record of rights and pahani. ( 6 ) THE questions which arise for decision are: (1) Whether the petitioner is a deemed tenant within the meaning of s. 4 of the Act. (2) Whether the Land Tribunal is justified in rejecting his application on the ground that the petitioner cultivated the land not as a tenant, but under the agreement created between the parties to sell the land to the petitioner. (2) Whether the Land Tribunal is justified in rejecting his application on the ground that the petitioner cultivated the land not as a tenant, but under the agreement created between the parties to sell the land to the petitioner. ( 7 ) S. 4 of the Act, says that 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 or a hired labourer on wages payable in cash or kind but not in crop share cultivating the land under the personal supervision of the owner or any member of the owner's family, or (c) a mortgagee in possession provided that if upon an application made by the owner within one year from the appointed day xx xx ( 8 ) A person to be a deemed tenant, must lawfully cultivate any land belonging to another person, if such land is not cultivated personally by the owner. But, sub-sec, (b) of S. 4 of the act, provides that the owner can cultivate the land with the help of hired labour under his personal supervision or any member of the family. Mr. Albal, argued that in this case, the ingredient of personal supervision of the owner in the matter of cultivation is utterly lacking and, therefore, he urged that the case set up by the 3rd respondent that the petitioner was a hired labourer is untenable and therefore petitioner was not a hired labourer of the 3rd respondent. ( 9 ) FOR this contention Mr. Albal, draws sustenance from Annexure-C, the "bade Pavati (receipt for hired labour) , Upon a careful reading of this document, there is no recital that the petitioner was to cultivate the land under the personal supervision of 3rd respondent or his wife. The body of the said receipt reads thus: it is clear from what has been excerpted above that the land was cultivated by the petitioner without the personal supervision of the 3rd respondent or his wife. In the absence of personal supervision of the owner over the cultivation of the land the petitioner's culitivation of the land does not amount to the cultivation by hired labour as contemplated under sub-sec, (b) of sec. 4 of the Act. In the absence of personal supervision of the owner over the cultivation of the land the petitioner's culitivation of the land does not amount to the cultivation by hired labour as contemplated under sub-sec, (b) of sec. 4 of the Act. The Legislature in its wisdom has put the words 'cultivating the land under the personal supervision of the owner or any member of the owner's family. ' The intendment of the Legislature is to see that the tenant or the agricultural labourer is not exploited by the landlords. Further, the Legislature intended the participation of the owner in the cultivation of the land along with the hired labourer to eliminate absentee landlordism. If the Land Tribunals entrusted with the sacred duty of effectuating the law on Land Reforms, merely touch the bark and miss the pulp - as has been done in the instant ease, - it would be a sad way of implementing the law. The case of hired labourer set up by the 3rd respondent in this case is a comaflouge to defeat the intendment of the Legislature. If the ingredient (or element) of personal supervision is lacking in the case of so-called cultivation by a hired labourer, it will inevitably lead to the conclusion that it is not a case of hired labour, but of a deemed tenant. Further, the amount of wages fixed by the 3rd respondent for the hired labourer is Rs. 300; though it is not stated it must be taken that it is for the entire year i. e. , 365 days. He has been saddled with the responsibility of raising plants on the land which requires the petitioner's attention throughout the year. The amount fixed under the labour receipt does not work out even a rupee per day, which is ridiculously lower than the minimum wages fixed for the agricultural labour er. If the hired labour theory as evidenced at Annexure-C is accepted, it is a clear case of exploitation of the agricultural labourer and denial of occupancy rights to the tenant which the Act seeks to eliminate by implementation of agrarian law reforms. The petitioner was required to do every kind of agricultural work at different stages in the cultivation of the land in question throughout the year. The petitioner was required to do every kind of agricultural work at different stages in the cultivation of the land in question throughout the year. He could not do it by accepting less than a rupee a day, which is a starvation allowance to any labourer whether agricultural or otherwise. He was required to supply the implements, bullock and all material required for the cultivation of the land. Nobody could do such arduous work for the cultivation of the land by accepting such a meagre wages. Therefore, this is a clear case in which the landlord created this document in order to deprive the petitioner of his entitlement for grant of occupancy rights in the land. The mode and method adopted by the 3rd respondent to deprive the petitioner of his statutory right for grant of occupancy rights cannot be accepted, much less countenanced. ( 10 ) THERE is yet another relevant circumstance which is relevant to show that it was physically impossible for the 3rd respondent to undertake any such personal supervision in the matter of cultivation of the land. It is undisputed that the 3rd respondent and his wife live in Dharwar city. The distance between Dhaxwar and Mugalkhed is stated to be 120 miles. It was physically impossible for the 3rd respondent to go to his land every day for the personal supervision for the cultivation of the land. Therefore, by no stretch of imagination the case set up by the 3rd respondent that the petitioner was a hired labourer can be accepted. ( 11 ) THE 3rd respondent's wife who was examined before the Land Tribunal has admitted that the petitioner cultivated the land under the hired labour agreement for the years 1965-66, 1966-67 and 1967-68 and she has produced three such receipts dated 2-9-1965, 2-9-66 and 15-7-67. She has not whispered a word about cultivation under owner's personal supervision. Admittedly before the petitioner entered in to an agreement of sale in the year 1968-69, the petitioner cultivated the land for three years prior to the agreement. He was therefore a deemed tenant under sub-Sec, (b) of Sec. 4 of the Act. The Land tribunal has wholly ignored the legal interpretation of the clause (b) of S. 4 of the Act. This has occasioned injustice to the petitioner's claim. He was therefore a deemed tenant under sub-Sec, (b) of Sec. 4 of the Act. The Land tribunal has wholly ignored the legal interpretation of the clause (b) of S. 4 of the Act. This has occasioned injustice to the petitioner's claim. It was the duty of the Land Tribunal to probe into the transaction set up by the 3rd respondent to determine the petitioner's righful claim for grant of occupancy rights. It is unfortunate that the Land Tribunal has failed to apply its mind to the legal aspect of the case when the question of tenancy is involved. The petitioner is therefore a deemed tenant as rightly contended by mr. Albal. ( 12 ) HOWEVER, Mr. Ramachandra learned counsel for the 3rd respondent contended that the entries in the record of rights and pahanis are in favour of 3rd respondent as Swanta (Self cultivation) during these three years. Therefore, he urged that the petitioner was not a tenant during these three years prior to 1968-69. It is obvious that these entries are manipulations in order to give a picture that this land was cultivated by the 3rd respondent. But as already pointed out above the truth is otherwise. ( 13 ) FROM the year 1969-70 to 1976-77 the petitioner's cultivation is shown as 'ryta' (cultivator ). Therefore, the petitioner having cultivated the land as a deemed tenant from the year 1965-66 to 1967-68 continued to cultivate it as a deemed tenant despite the intervention of the agreement to sell in the year 1968-69. Thus, uninterruptedly, the petitioner cultivated the land as a deemed tenant from the year 1965-66 upto 1976-77. ( 14 ) MR. Ramachandra,, vehemently contended that the petitioner is not entitled to claim that he is a deemed tenant under the agreement to sell, In support of his contention he relied upon the ruling of the Gujarath High court in Ambalal Vallabhai Patel v. Mangalbhai Dhulabhai Bhoi AIR 1978 Guj. 208 wherein it is held that if a person entering into possession of a piece of land and cultivating it under an agreement to sell does not become a deemed tenant under Section 4 of the bombay Tenancy and Agricultural lands Act, 1948. It is unnecessary to deal with the question whether the view taken by the Bench of the Gujarat High Court is correct or not, since the ratio of the decision relied upon by mr. It is unnecessary to deal with the question whether the view taken by the Bench of the Gujarat High Court is correct or not, since the ratio of the decision relied upon by mr. Ramachandra, does not bear on the facts and circumstances of this case. The possession of the petitioner in respect of this land is not disputed by the 3rd respondent. Therefore the petitioner who was inducted as a tenant in the year 1965-66 did not lose his rights as a deemed tenant till today. This legal position has not been properly considered at all by the Land tribunal. The Land Tribunal has rejected the application of the petitioner solely on the ground that he. was in possession and cultivating the land on the basis of an agreement to sell which came into existence in the year 1968-69, without considering his legal position prior to 1968-69. This finding is based upon an erroneous conception of law. The rights of the petitioner who became a tenant in the year 1965-66 were protected in spite of the fact the petitioner entered into an agreement with the 3rd respondent for the sale. The 3rd respondent has advanced a sum of Rs. 2,000 out of the consideration of Rs. 10,000 and he has been contesting the suit in OS No. 51 of 1976 on the file of the Munsiff, mudhol and he is not willing to execute the sale deed in favour of the petitioner after acceptance of the remaining part of the consideration amount. Thus the jural relationship that was contemplated between the parties under agreement to sell is no longer in existence. Alternatively, it may be stated that the petitioner entering into an agreement for sale with the 3rd respondent does not lose his right as a tenant. S. 39 of the Act as it stood then, comes to his rescue. ( 15 ) UNDER sub-section (1) of S. 39 of the Act, if a landlord at any time intends to sell the land held by a tenant, he shall give notice in writing of his intention to such tenant and offer to sell the land to him. In case the latter intends to purchase the land, he shall intimate in writing his readiness to do so within two months from the date of receipt of such notice. In case the latter intends to purchase the land, he shall intimate in writing his readiness to do so within two months from the date of receipt of such notice. ( 16 ) OF course, under sub-section (2) of S. 39 of the Act, the Tahsildar was to determine the reasonable price and the tenant was to deposit the money with the Tahsildar. These provisions have not been complied with in the present case. However, the direct transaction between the petitioner and the 3rd respondent in connection with the agreement to sell has not affected the rights of the petitioner as a deemed tenant and, therefore, he is entitled to enforce his right as a tenant and ' claim occupancy rights. The suit pending before the Munsiff, is no bar for such a claim. Whether the petitioner succeeds or fails in the suit for specific performance, at least if law permits, he is entitled to recover the amount of part consideration of rs. 2,000 paid by him. The rejection of the application filed in form No. 7 by the petitioner by the Land Tribunal, without examining the legal implications has caused great injustice to an ignorant agriculturist namely the petitioner. ( 17 ) NOW adverting to the contention of delay raised by Mr. Ramachandra, it must be stated that the petitioner has stated in the course of the averments in the writ petition that he was not aware of the impugned order dated 10-2-76. It is also true that he had filed the suit before the munsiff, Mudhol, mentioning this fact. The averment therefore made is incorrect. But the explanation offered in the reply statement reads thus: in spite of the vehement argument of mr. T. S. Ramachandra with regard to the laches of delay, the explanation offered on behalf of the petitioner for making an incorrect statement in the averments in the writ petition with regard to his knowledge of the impugned order by the Land Tribunal must be accepted especially when it has occasioned injustice to the petitioner. Therefore, merely because of an incorrect averment, the writ petition cannot be dismissed in limine. A lenient view has to be taken even if some incorrect statement or averment is made by the petitioner. Therefore, merely because of an incorrect averment, the writ petition cannot be dismissed in limine. A lenient view has to be taken even if some incorrect statement or averment is made by the petitioner. It is common knowledge that when illiterate litigants instruct their counsel they will not be able to do it as effectively as a literate or an experienced person would do. ( 18 ) MR. Ramachandra, further pointed out that the petitioner himself has not stated that he cultivated the land as a tenant, but he has categorically stated that he cultivated the land under the agreement to sell. The human nature being what it is, the petitioner being ignorant of the legal position with regard to the deemed tenancy and in order to assert his rights under the agreement to sell might have stated so inadvertently. But such admission against law cannot affect his rights because tenanted lands get vested on the appointed day in the Government under Section 44 of the Act and the question of granting occupancy rights arises later. It is also not possible to say whether the petitioner really stated so before the Land Tribunal and whether it was properly recorded especially when his case before the land Tribunal for grant of occupancy rights was that he was a tenant for a period of 15 years prior to 1974. He has not stated in form No. 7 that he claimed tenancy under the agreement to sell. Therefore, the admission pointed out by Mr. Ramachandra, does not in any manner affect the rights of the petitioner for grant of occupancy rights. Therefore, the rejection of the claim of the petitioner is not justified. The impugned order has caused injustice to the petitioner and the same is hereby quashed and the case is remitted to the Land Tribunal, for consideration, of his claim for grant of occupancy rights on the basis that the petitioner has been a deemed tenant and to dispose of the case in accordance with law. ( 19 ) IN the result, the writ petition is allowed. Rule made absolute. No costs. --- *** --- .