Research › Browse › Judgment

Karnataka High Court · body

1997 DIGILAW 673 (KAR)

RAMACHANDRA DEVASTANAM, SAWADA v. SUBBANNA SHETTY

1997-11-21

CHIDANANDA ULLAL

body1997
CHIDANANDA ULLAL, J. ( 1 ) THIS revision is directed against the order dated 5-3-1990 passed in appeal No. 13 of 1989 on the file of the additional land reforms appellate authority, kundapur. In passing the said Order, the appellate authority had confirmed the order dated 28-1-1989 passed by the land tribunal, whereby it had corrected the claim of the respondent No. 1 in respect of sy. No. 375/4a in the place of the original claim in sy. No. 375/4d. ( 2 ) I heard the learned counsel for the revision petitioner Sri R. V. Jayaprakash and Sri S. R. Hegde Hudlamane for the respondent No. 1. I have also perused the records. ( 3 ) THE instant revision requires narration of necessary facts. They are in brief as hereunder: that the respondent 1 had filed form 7 under Section 48-a of the Land Reforms Act, henceforth in brief as the 'act', claiming occupancy right in respect of 71 cents in sy. No. 64-1, 80 cents in sy. No. 64-2, 90 cents in sy. No. 64-5, 35 cents in sy. No. 64-4 and 4 acres 54 cents in sy. No. 375-4d. That all the above lands belonged to the appellant temple and that in the first round of the tenancy proceedings, having been served with the notice by the land tribunal, the appellant-temple did not appear, for it is so borne on record of the land tribunal. That the land tribunal accordingly, granted the occupancy right in respect of all the above survey numbers by its considered order dated 15-1-1979. ( 4 ) IT appears that while passing the said final Order, for the reasons best known to the land tribunal it had directed the tahsildar to measure the lands and issue the registration certificate thereafter. That after about 8 years, the respondent 1 had found out that there existed no bifurcated sy. Nos. 64-4 and 375-4d and what were existing were the sy. Nos. 64-3 and 375-4a. ( 5 ) THAT pursuant to the application filed by the respondent 1 before the land tribunal for correcting the survey number as above, survey was conducted by the land tribunal for correcting the original claim to say that the claim was in respect of sy. Nos. Nos. 64-3 and 375-4a. ( 5 ) THAT pursuant to the application filed by the respondent 1 before the land tribunal for correcting the survey number as above, survey was conducted by the land tribunal for correcting the original claim to say that the claim was in respect of sy. Nos. 64-3 and 375-4a on the ground that there was a mistake in setting out the above survey numbers denoting the same as 64-4 and 375-4d in the form 7 and that there existed no survey number as described therein and therefore, the said mistake had occurred also in granting the occupancy right in respect of a non-existing survey numbers and therefore, the same had to be corrected. ( 6 ) THE land tribunal had issued notices to the appellant and the respondent 1 herein, in pursuance of that application and after an enquiry and hearing passed the order dated 28-1-1989 to give effect to the correction to say that the claim was in respect of sy. Nos. 64-3 and 375-4a. That neither before the land tribunal nor before the appellate authority did the petitioner here oppose the application for correction of the first survey number i. e. , 64/4 to correct it as 64/3. That the said order of the land tribunal came to be challenged by the revision petitioner before the additional land reforms appellate authority, kundapur, limited to correction of the other survey number from 375/4d to 375/4a. The said appellate authority had also entered into an enquiry, for both sides had also adduced evidence before the appellate authority and in consideration of the material evidence on its record and on the records of the land tribunal and after hearing the parties, the appellate authority had confirmed the order of the land tribunal in giving effect to the correction of the claim as stated above. ( 7 ) BEING aggrieved thereby, the revision petitioner is before this court to challenge the same in so far as the same related to the second item in sy. No. 375-4a. ( 7 ) BEING aggrieved thereby, the revision petitioner is before this court to challenge the same in so far as the same related to the second item in sy. No. 375-4a. ( 8 ) THE learned counsel for the revision petitioner Sri jayaprakash argued that the land tribunal had passed the order at the first instance on 15-1-1979 without there being jurisdiction vested in it to do so, for according to him, all that that was available for the land tribunal under sub-section (6) of Section 48-a of the act was only to correct either the clerical error or the arithmetical error committed by it and that by giving effect to the correction as above, what the tribunal had done is to treat the claim of the respondent 1 as if it was in respect of sy. No. 375-4a when the claim in the form No. 7 was clearly made out in respect of sy. No. 375-4d. According to him, the said order passed by the land tribunal was totally erroneous, particularly when even the amendment was not attempted to be made by the respondent 1 during the pendency of the tenancy proceedings before the land tribunal. He vehemently argued that when the very amendment was not done as contemplated under sub-section (3) of Section 48-a of the act and that when the error was not shown to be either a clerical or an arithmetical error in the hands of the land tribunal, the correction by the land tribunal as above to grant occupancy right in respect of the corrected survey number amounted to grant of occupancy right in respect of the survey number which was not at all claimed by the respondent 1 in his form 7, that too when the land tribunal was moved after eight and half years after the original order came to be passed. Incidentally, he had also pointed out that the conduct of the land tribunal in passing the original order was as if it was reviewing its own order and that such a jurisdiction was vested in the land tribunal only under Section 122-a of the act and the said provision of law is applicable when a favourable order was obtained by a declarant under Section 66 of the act by misrepresentation. He had also pointed out that consideration of grant of occupancy by the land tribunal arose only when the subject land was cultivated by him and admittedly in the instant case in hand, all that he was doing in the subject land was taking the leaves from the 'hadi' for the purpose of his agricultural operation and nothing beyond. By summing up his argument, Sri jayaprakash submitted that at no stretch of imagination can it cannot be said that the impugned order passed by the appellate authority and also, the order passed by the land tribunal were justified in the facts and circumstances of the case. ( 9 ) ALTERNATIVELY, Sri jayaprakash had also argued that when the subject land was admittedly the 'hadi' land and that the evidence of the respondent 1 was to the effect that he was only collecting leaves for the purpose of his agricultural operation, the same could not be considered as a cultivable land to fall within the ambit of sub-section (18) of section 2-a of the Land Reforms Act. ( 10 ) SRI jayaprakash had also argued that the term, 'to cultivate' had been defined under the act in sub-section (10) of Section 2-a and according to him, the said term has to be referred to the land under cultivation and if that is so referred to and read, it cannot be said that the subject land is a cultivable land. Such an argument was advanced by him for the reason that according to him, the 'hadi' land is not a cultivable land at all and further that the same does not fall within the definition of the term land as defined under sub-section (18) of Section 2-a of the act. ( 11 ) FOR the aforesaid reasons he prayed that the instant revision be allowed and the impugned order passed by the appellate authority hereunder challenge and further the order passed by the land tribunal correcting the original order with regard to the survey number in so far as the same related to the second survey number i. e. , sy. No. 375/4a be quashed. No. 375/4a be quashed. ( 12 ) THE learned counsel Sri hegde on the other hand argued that in the instant case in hand, it was a peculiar circumstance the land tribunal was confronted with, for the mistake occurred in the hands of the petitioner was in setting out the incorrect bifurcated survey numbers. he had also argued that the respondent 1 while filing his form 7 had stated the main survey numbers correctly and that all that mistake the respondent 1 did in form 7 was instead of mentioning the claim in respect of 375-4a and 64/3, he had mentioned as in respect of 375-4d and 64/4 respectively. He had also pointed out that it was not in dispute that the extent 4 acres 55 cents was a 'hadi' land and that the claim was made by the respondent 1 as against the appellant herein in respect of that land alone. It is also his submission that the application filed by the respondent 1 before the land tribunal was when it was found out that the survey number was wrongly mentioned and therefore there was legal necessity for the petitioners to move the land tribunal for correcting the said mistake to give effect to the original order of the land tribunal. It is also his further submission that the land tribunal had conducted a survey in pursuance of such an application given by the respondent 1 and it had found out that the corresponding survey number for 'hadi' land of the petitioner measuring 4 acres 55 cents was 475-4a and 35 cents of agricultural land was 64/3 and it is that mistake, which the land tribunal had corrected in passing the order dated 28-1-1989. it is also his argument that the act is a beneficial piece of legislation enacted by the legislature for conferring occupancy right to the tiller of the soil and in the instant case, unless the order is given effect to by the land tribunal, the very purpose in granting occupancy right would be defeated and therefore according to him, the original order of the land tribunal dated 28-1-1989 and further the order of the appellate authority in confirming the order of the land tribunal, impugned herein in this revision, giving effect to the corrections of the survey numbers are just and proper and not called for to be interfered with. therefore, he prayed that the instant revision be rejected. ( 13 ) IN the light of the above submissions made by the respective side, i feel it proper to consider at the threshold whether the subject land is a land as defined under sub-section (18) of Section 2-a of the act and further whether the subject land admittedly a 'hadi' land is a cultivable land to be within the meaning of the term, 'to cultivate' as defined under sub-section (10) of Section 2-a. This in fact is the alternative argument advanced by the learned counsel for the petitioner Sri jayaprakash. this i consider here before turning to the main contention put forth by him that under sub-section (6) of Section 48-a of the Act, the land tribunal does not get jurisdiction to correct its order unless it is either a clerical or arithmetic mistake. ( 14 ) SUB-SECTION (18) of Section 2-a of the act defines the term 'land' as follows:" (18) "land" means agricultural land, that is to say, land which is used or capable of being used for agricultural purposes or purposes subservient thereto and includes horticultural land, forest land, garden land, pasture land, plantation and tope but does not include house-site or land used exclusively for non-agricultural purposes;"if we analyse the above definition of the term land, it is clear that the exceptions made thereunder are only in respect of the house-site or the land exclusively used for non-agricultural purposes; the act had gone to the extent of even construing the pasture land, plantation land and 'tope' land within the meaning of the term 'land' and in the instant case, admittedly the subject land is a 'hadi' land and in the district of dakshina kannada, in the 'hadi' land, the shrubs and the plants are grown for the purpose of securing the leaves for manuring the adjacent cultivable land; as such it is akin to 'tope' land. It is borne on record that the respondent 1 was using the leaves from the plants grown in the 'hadi' land, for cultivating the other lands in sy. Nos. 64/5 and 64/3 and other lands belonging to the revision petitioner-temple very well granted by the land tribunal by way of occupancy right. It is borne on record that the respondent 1 was using the leaves from the plants grown in the 'hadi' land, for cultivating the other lands in sy. Nos. 64/5 and 64/3 and other lands belonging to the revision petitioner-temple very well granted by the land tribunal by way of occupancy right. All the more, it is relevant to be taken note that 'hadi' land in question is situated adjacent to the above pieces of lands and as such the granted land cannot be beneficially made use of by the respondent 1 unless the 'hadi' land is also made use of for manuring by removing the leaves therefrom. In that view of the matter, i do not find any difficulty in holding that the 'hadi' land subject land is a land within the meaning of the term 'land' as defined under the above provision of law of the act in sub-section (18) of section 2-a. ( 15 ) THE learned counsel for the petitioner had advanced an argument that the term 'to cultivate' as defined in sub-section (10) of section 2-a cannot be applied to the subject land, for according to him, the same is not a cultivable land. Even that argument of the learned counsel is very difficult for me to accept, for the term 'to cultivate' is an inclusive definition to cultivate land, for the purpose of raising or improving agricultural produce whether by manual labour or by means of cattle or machinery. Sub-section (10) of Section 2-a of the act with an explanation there below reads as hereunder: " (10) "to cultivate" with its grammatical variations and cognate expressions means to till or husband the land for the purpose of raising or improving agricultural produce whether by manual labour or by means of cattle or machinery, or to carry on any agricultural operation thereon; and the expression "uncultivated" shall be construed correspondingly; explanation. A person who takes up a contract to cut grass or to gather the fruits or other produce of any land, shall not on that account only be deemed to cultivate such land;" ( 16 ) IN the said circumstances, I have no hesitation to reject the said limb of the argument of the petitioner and i hereby do so. A person who takes up a contract to cut grass or to gather the fruits or other produce of any land, shall not on that account only be deemed to cultivate such land;" ( 16 ) IN the said circumstances, I have no hesitation to reject the said limb of the argument of the petitioner and i hereby do so. Even otherwise, i do not think that such an argument is available for the learned counsel for the petitioner to advance now before this court, for when the original notice was issued to the petitioner by the land tribunal while considering the original claim of the respondent 1, it did not oppose such a claim as the revision petitioner did not appear before the land tribunal at all; as a matter of fact, the land tribunal was obliged to grant the occupancy right in respect of all the survey numbers as claimed by the respondent 1 when there was no objection worth the name from the side of the revision petitioner. ( 17 ) NOW i turn to the main contention of the petitioner that it was not permissible for the land tribunal to correct its own order under subsection (6) of section 48-a of the act as the land tribunal did in passing the impugned order. Before proceeding further, i deem it fit to quote here sub-section (6) of Section 48-a of the act. The same reads as hereunder:" (6) the order of the tribunal under this Section shall be final and the tribunal shall send a copy of every order passed by it to the tahsildar and the parties concerned: provided that the tribunal may, on the application of any of the parties, for reasons to be recorded in writing, correct any clerical or arithmetical mistakes in any order passed by it: provided further that the tribunal may on its own or on the application of any of the parties, for reasons to be recorded in writing, correct the extent of land in any order passed by it after causing actual measurement and after giving an opportunity of being heard to the concerned parties". ( 18 ) IT is relevant to point out here that there are two provisos to sub-section (6) to section 48-a as above. The second proviso in my considered view is relevant for our purpose. ( 18 ) IT is relevant to point out here that there are two provisos to sub-section (6) to section 48-a as above. The second proviso in my considered view is relevant for our purpose. If we read the second proviso as above, it is clear that the land tribunal has jurisdiction to correct its mistake on its own or on an application of any of the parties for the reasons to be recorded in writing to correct the extent of land in any order passed by it, of course after causing notices to the parties affected. if we carefully analyse the second proviso to sub-section (6) of section 48-a, it appears to me that the land tribunal has jurisdiction on its own to correct the extent of land if that mistake had occasioned due to its own folly. The extent of land has to be considered not with reference to the actual extent alone, but also with reference to the survey number, for the extent cannot be read in isolation devoid of the survey number. in this context, it is also relevant here to refer to the duties of the land tribunal as set out in Section 112-b. The same reads as hereunder: "112-b. Duties of tribunal. (a) to make necessary verification or hold an enquiry including local inspection and pass orders in cases relating to registration of tenant as occupant under Section 48-a; (b) to decide whether a person is a tenant or not; (bb) to decide whether the land in respect of which an application under Section 48-a is made or in respect of which any question of tenancy is raised or involved, is or is not an agricultural land; (bbb) to decide questions referred to it under Section 133; (bbbb) to issue interim orders under Section 48-c; (bbbbb) determination of the land to be surrendered under section 67; (c) to hold necessary enquiry including local inspection and pass orders in cases relating to registration of agricultural labourers as owners of dwelling houses and land appurtenant thereto under Section 38; (d) to perform such other duties and functions as are imposed on the tribunal under the Provisions of this act or under any rule made thereunder". ( 19 ) FROM the above, it appears to me that the land tribunal was duty bound to make necessary verification or to hold an enquiry including the local inspection and pass orders in cases relating to the registration of the tenant. As a matter of fact, as per clause (a) below section 112-b as above, it is the first and foremost duty of the land tribunal. As we see, in the instant case in hand, in passing the original order dated 15-1-1979, the land tribunal abdicated itself from doing its own statutory duty to make necessary verification or to hold an enquiry including the local inspection and instead it had directed the tahsildar to measure the land to give effect to the order in granting occupancy right in respect of six items of the land including the subject land in the disputed sy nos. 375-4d and 64/4 (as claimed by the respondent 1 in filing form 7 ). in my considered view the land tribunal would not have passed the original order on 15-1-1979 without satisfying itself as to whether the claims were made in respect of the correct survey numbers if necessary by holding a spot inspection and this i observe with a reference to the duty cast on the land tribunal as contemplated under clause (a) of Section 112-b of the act. It further appears to me that it is that duty the land tribunal had not discharged before passing the earlier order dated 15-1-1979 for it had passed on that duty to the tahsildar to measure and grant the registration certificate thereafter to the respondent 1. ( 20 ) IN the light of the above failure on the part of the land tribunal, if we read the second proviso to sub-section (6) of Section 48-a, worst come, it has to be construed that the land tribunal had corrected its own mistake in not verifying the claim of the respondent 1, also by holding the spot inspection by itself before passing the earlier order on 15-1-1979 and further directing therein the tahsildar to measure the land before issuing registration certificate. Such an impression can as well be gathered if we read reasoning No. 1 at page No. 3 of the order dated 28-1-1989 of the land tribunal. Such an impression can as well be gathered if we read reasoning No. 1 at page No. 3 of the order dated 28-1-1989 of the land tribunal. To quote the same, the same reads as hereunder: under second proviso to sub-section (6) of Section 48-a of the act referred to in the para supra, it is clear therefrom that the land tribunal has got power to correct its own mistake to correct the extent. When such a power is very much available to the land tribunal to do suo motu, it further appears to me that the impugned order passed on 28-1-1989 to correct the original claim as if in respect of sy. No. 375-4a and sy. No. 64/3 as against the original claim in respect of sy. No. 375-4d and sy. No. 64/4 was just and proper and cannot be termed as bad; that is how i see the scheme of things in the matter of interpretation of beneficial piece of social legislation in the act. ( 21 ) ALL the more, even the appellate authority in the peculiar circumstances what was confronted with had also confirmed the order of the land tribunal giving effect to the correction in the survey numbers. therefore, i for one do not find any good reason to interfere with the concurrent finding of both the authorities below while exercising revisional jurisdiction under Section 121-a of the act. ( 22 ) IN that view of the matter, i find no merit in the instant revision petition and the same therefore fails and accordingly dismissed. --- *** --- .