KARAYANASWAMY,M. v. STATE OF KARNATAKA — 1982 DIGILAW 11 (KAR)

K. BHIMIAH, J. ( 1 ) THE petitioner who is the owner of the lands which are the subject matter of the proceedings in case No. LRF (B) NP 4/1163/74-75 pending before the 2nd respondent, Land Tribunal, has filed this writ petition for issue of a writ of mandamus directing the 1st respondent to pass orders on the recommendation of the deputy Commissioner and on the application of the petitioner for exemption from the application of the provisions of the Karnataka Land Reforms Act, 1961 (to be hereinafter called the 'act') with regard to the Stud Farm called 'clive Stud farm' under S. 107 (v) of the Act and also to quash the entire proceedings in case no. LRE (B) NP 4/1163/74-75 before the 2nd respondent Land Tribunal and further has sought for a direction to the 2nd respondent not to proceed with the enquiry in respect of the aforesaid proceedings. ( 2 ) THE facts of the case are : That the lands bearing Sy. Nos. 48, 49, 50, 51, 62, 63, 66 (Part), 67, 68, 69, 70 and 71 of Nimbakayepura village in Hoskote taluk, Bangalore Dist. , formerly belonged to the joint family of the petitioner. Out of these survey numbers, Sy. Nos. 62, 63, 66 (Part), 67, 68, 69, 70 and 71 comprised in an area of about 69 acres were leased to the 3rd respondent and his wife for a period of ten years from 17-4-67 on a monthly rent of Rs. 1,000 for running a 'stud Farm' under a registered lease deed executed by the petitioner and his late father Sri Muniyappa. Further the petitioner and his father mortgaged with possession under a registered mortgage deed dated 13 94967 Sy. Nos. 48, 49, 50 and 51 of Nimbakayepura village in favour of 3rd respondent and his wife. These two parcels of the land formed the 'clive Stud farm'. ( 3 ) THE petitioner filed a suit for redemption in OS No. 71/77 in the Court of the civil Judge, Bangalore Dist. A settlement was arrived at and in pursuance of the said settlement, the petitioner and the legal heirs of his brother B. M. Ramanna, leased the lands for a period of eight years from 1-4-1977. ( 3 ) THE petitioner filed a suit for redemption in OS No. 71/77 in the Court of the civil Judge, Bangalore Dist. A settlement was arrived at and in pursuance of the said settlement, the petitioner and the legal heirs of his brother B. M. Ramanna, leased the lands for a period of eight years from 1-4-1977. The power of attorney holder of 3rd respondent A. P. Kothavale, has filed an application in form No. 7 for grant of occupancy rights in respect of these lands on 31-12-1974 on the ground that R 3 is the tenant of the land. The 2nd respondent, Land Tribunal, is now seized of the proceedings pending before it. After service of notice on the petitioner the petitioner appeared before the Land Tribunal on 12-2 1976 and filed his written statement of objections contending among other grounds that the application filed in form No. 7 by the power of attorney is not maintainable in law and that the Land tribunal had no jurisdiction to entertain the said application and that the power of attorney had no authority to claim occupancy rights. In the meanwhile the petitioner seems to have applied to the State government through the Deputy commissioner, to take action under the provisions of S. 107 of the Act, for approval by the government for the use of these lands as stud Farm as the same was in existence on 24-1-1971. ( 4 ) THE petitioner's grievance is that the State Government has not taken any action in this behalf and, therefore, he has sought for the reliefs, namely, issue of a writ of mandamus directing the 1st respondent to pass orders on the recommendation made by the Deputy Commissioner and also on the application filed by the petitioner and for quashing the proceedings pending before the 2nd respondent and a direction to the 2nd respondent not to proceed with the enquiry in respect of the lands used by the Clive Stud Farm. ( 5 ) MR. Kadidal Manjappa, learned counsel for the petitioner, firstly, contended that the petitioner has a legal right under S. 107 of the Act, for claiming exemption being the owner of the land. ( 5 ) MR. Kadidal Manjappa, learned counsel for the petitioner, firstly, contended that the petitioner has a legal right under S. 107 of the Act, for claiming exemption being the owner of the land. Secondly, he contended that the State government is under a legal obligation to consider the applicatio'n filed by the petitioner and also the recommendation made by the Deputy Commissioner and pass orders as required under S. 107 of the Act. Thirdly he contended that under S. 31 of the Foreign Exchange Regulation Act, 1973, that a non-resident foreigner is prohibited from acquiring the land. Fourthly, he contended that the Land Tribunal has no jurisdiction to entertain the application filed in form No. 7 and proceed with the enquiry and, therefore, the petitioner is entitled to get the proceedings before the land Tribunal, quashed. ( 6 ) MR. S. G. Sundaraswamy, learned counsel for the contesting respondent, contended that the property is a leased property, the lease having been commenced on 17-4-1967 and 6-1-1978 with a covenant of renewal for eight years. He urged therefore that the lands got vested in the government on 1-3-1974 and it remains unaltered even to day and the petitioner has no subsisting interest. Secondly, he, contended that pursuant to the lease the Stud farm came into existence by the effort of the 3rd respondent who is the owner of the stud Farm established by him. Therefore, he urged that the application made by the petitioner to the Government is misconceived. He further elaborated his contention by submitting that, under S. 107 of the act, several categories of lands have been exempted from the application of the Act. The object was to benefit the owner, who is actually the tiller of the soil and to save the tiller from the oppression of the owner and also in order to save him from the ceiling limit as the Stud Farm requires more extent of land and extra consideration is shown to the owner of the Stud farm and not to the owner of the land. Thirdly, he contended that the petitioner is not entitled to ask this Court to direct the Land Tribunal to forbear from exercising the jurisdiction in anticipation of approval by the Government and divest the jurisdiction of the Tribunal. Thirdly, he contended that the petitioner is not entitled to ask this Court to direct the Land Tribunal to forbear from exercising the jurisdiction in anticipation of approval by the Government and divest the jurisdiction of the Tribunal. Fourthly, he contended that the petitioner is not entitled to ask this Court to exercise the discretionary powers under Art. 226 of the Constitution for doing something in anticipation of something to be done. Fifthly, he contended that under S. 79 (B-A) of the Act, the petitioner is disentitled to hold the land as the provision prohibits him from holding agricultural land. He further urged that the petitioner on his own showing wants the land to be sold and profit by it. ( 7 ) THE learned Government Advocate, submitted that the rules as required under s. 107 (v) of the Rules have been framed and sent to the President of India for approval and that the approval is expected. After the receipt of the Rules, the state Government will have to take necessary steps for exempting the Stud Farms in the State from the application of the provisions of the Act, Therefore, he, contended that the petitioner is not entitled to the issue of a writ of mandamus. ( 8 ) NOW the questions for decision are (I) Whether the petitioner is entitled for issue of a writ of mandamus directing the State Government to pass orders on the application made by him and also on the recommendation made by the deputy Commissioner, Bangalore. (II) Whether the proceedings before the Land Tribunal are liable to be quashed on the grounds urged on behalf of the petitioner. (III) Whether the petitioner is entitled for a direction to be given to the Land tribunal not to proceed with the enquiry in the aforesaid proceeding pending before the Land Tribunal. ( 9 ) TAKING the contention relating to the issue of mandamus, it is necessary to remember the law enunciated by the Supreme Court on the question of issue of writ of mandamus under Art. 226 of the Constitution. In the decision in Sangram Singh v. Elec. Trib. Kotah (1) it has been laid down that there must be a manifist injustice to the party aggrived to issue the writ of mandamus. In the decision in Sangram Singh v. Elec. Trib. Kotah (1) it has been laid down that there must be a manifist injustice to the party aggrived to issue the writ of mandamus. ( 10 ) FURTHER, the law is enunciated thus by the Supreme Court in Mani Subrat Jain v. State of Haryana (2 ). In para 9 of the judgment it is observed thus :"it is elementary though it is to be restated that no one can ask for a mandamus without a legal right. There must be a judicially enforceable right as a legally protected right before one suffering a legal grievance can ask for a mandamus. A person can be said to be aggrieved only when a person is denied a legal right by someone who has a legal duty to do something or to abstain from doing something". In the light of these decisions I will proceed to consider whether the petitioner is entitled for the issue of a writ of mandamus. ( 11 ) S. 107 (v) of the Act, contemplates exemption. According to the Government advocate rules have been framed for exemption of 'stud Farms' and have been sent to the President of India by the State government for approval. In the instant case, it is not disputed that the Stud Farm in question has not so far been exempted. Further as submitted by the learned government Advocate, the State Government has taken action to frame Rules and has submitted it for assent by the President of India. The assent has not been received so far from the President. Until such an assent is given, thp State Government does not get necessary power to exempt any land under Ss. 107 and 110 of the Act. But the argument of Mr. Kadidal Manjappa is that the petitioner has a legal right and the State Government is under the legal obligation to exempt the Stud Farm in question from the application of the provisions of the Act. ( 12 ) MR. Sundaraswamy, on the other hand contended that the petitioner has no legal right to apply for exemption since he is not the owner of the Stud Farm. The determination of the question is whether a owner of the land or the owner of the Stud farm who should apply for exemption is a matter for the Government to decide. Sundaraswamy, on the other hand contended that the petitioner has no legal right to apply for exemption since he is not the owner of the Stud Farm. The determination of the question is whether a owner of the land or the owner of the Stud farm who should apply for exemption is a matter for the Government to decide. However, the position is that the State government has done what was required of it in framing the rules and sending them for assent by the President. Therefore, it is not possible to accede to the contention of Mr. Manjappa, that the State Government has failed in the performance of its legal duty. When the State Government has taken steps to frame the rules in order to approve the exemption of the Stud farm in the State, i its not possible to say that the State Government has failed to perform its duty. Therefore as rightly contended by Mr. Sundaraswamy, the petitioner is not entitled for issue of a writ of mandamus, against the State Government to consider his application and also the recommendation made by the Deputy commissioner to pass orders as required under S. 107 of the Act. ( 13 ) NOW adverting to the fourth contention of Mr. Manjappa, whether the land Tribunal has jurisdiction or not to entertain the application filed in Form no. 7 and proceed with the enquiry, it may be stated that, indisputably the lands in question were leased to the 3rd respondent as early as in the year 1967 by a renewal from 1978. It cannot be disputed that the lands got vested in the Government under S. 44 of the Act as they are admittedly tenanted lands. That being so, it is untenable to contend that the Land tribunal has no jurisdiction to entertain the application filed in form No. 7. So long as these lands remain as tenanted lands, the power of attorney is entitled to file an application in form No. 7 under s. 48-A of the Act, and the Land Tribunal gets jurisdiction to deal with such an application for grant of occupancy rights. ( 14 ) HOWEVER, the contention of Mr. So long as these lands remain as tenanted lands, the power of attorney is entitled to file an application in form No. 7 under s. 48-A of the Act, and the Land Tribunal gets jurisdiction to deal with such an application for grant of occupancy rights. ( 14 ) HOWEVER, the contention of Mr. Manjappa, is that under S. 31 of the foreign Exchange Regulation Act of 1973, the 3rd respondent is not entitled to acquire, hold or transfer or dispose by sale, lease, settlement or otherwise any immovable property situate in India. The reply of Mr. Sundaraswamy, on this question is that the Reserve Bank of India has permitted the 3rd respondent to hold lands under S. 31 of the Foreign Exchange regulation Act. His further contention is that without prejudice to the respondent's contentions, that question cannot affect the jurisdiction of the Land Tribunal to deal with the application filed in form No. 7 on behalf of the 3rd respondent. Sub sec. (1) of S. 31 of the Foreign exchange Regulation Act, 1973, contemplates special permission from Reserve bank of India to acquire or hold immovable property. When this has been granted by the Reserve Bank of India, which grant has not been denied by the petitioner's counsel, S. 31 of the Foreign exchange Regulation Act, 1973, is not attracted. Assuming that it is attracted, the Land Tribunal is not deprived of its jurisdiction to deal with a tenanted land which vested in the Government on 1-3-1974, as such lands under the Act are liable to be disposed of otherwise, if the 3rd respondent is found to be not entitled for grant of occupancy rights. ( 15 ) THEREFORE, to say that, the Land tribunal has no jurisdiction to deal with the question is contrary to the provisions of the Act. Therefore, the Land Tribunal i:; vested with the jurisdiction to hold enquiry into the claim for grant of occupancy rights made by the 3rd respondent. That being so, it is not permissible under Art. 226 of the Constitution to divest the Land tribunal of its jurisdiction to deal with the matter and dispose of the proceedings. It is impermissible under Art. 226 of the constitution to issue a writ of certiorari and to quash the proceedings pending before the Land Tribunal. Hence the petitioner is not entitled for the said relief. It is impermissible under Art. 226 of the constitution to issue a writ of certiorari and to quash the proceedings pending before the Land Tribunal. Hence the petitioner is not entitled for the said relief. ( 16 ) THE other contentions, namely, whether the petitioner is entitled to hold the land or whether the 3rd respondent is entitled to get the grant of occupancy rights are left open for the Land Tribunal to decide. Since these questions are to be determined by the Land Tribunal, any expression of opinion of this Court on these questions may influence the decision of the Tribunal. Therefore this Court refrains from adjudication on those questions. ( 17 ) THE question whether a Stud Farm comes within the definition 'agricultural land' is also raised in this writ petition. This question is left open to the Land tribunal to decide the same. Therefore, the petitioner is not entitled for the grant of the reliefs namely, writ of mandamus directing the State Government to pass orders on the recommendation of the deputy Commissioner and on his application and for quashing the entire proceedings before the Land Tribunal in the aforesaid proceedings by issue of a writ of certiorari. ( 18 ) IN the result, the writ petition fails and it is dismissed. Rule discharged. No costs. --- *** --- .