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2002 DIGILAW 467 (KAR)

Lakshminarayana Rao v. Sai Rama Rao

2002-07-26

R.GURURAJAN

body2002
ORDER R. Gururajan, J.--Petitioner/landlord is challenging the order of the land tribunal dated 8.5.2001. 2. Petitioner's father had granted on Mulageni, 15 cents of land in Sy. No. 84/4C1 to the first Respondent's father in the year 1942. The same was registered. It was a house site granted for residential purpose and buildings were already there. The co-sharers of the first Respondent family executed a released deed on 5.3.1995 releasing their rights in favour of the first Respondent. The deed mentions that the deed has been executed in respect of non-agricultural property. The first Respondent filed Form No. 7A before the second Respondent and the matter was enquired into and thereafter an order has been passed which is challenged in these proceedings. 3. Notice was issued pursuant to which Respondents have entered appearance. Contesting Respondent has filed the statement objection in this Court. Moolageni has been explained by the contesting Respondent. He also says that the facts would show that Petitioners have not made out any case for interference. 4. Government has also filed its objections in support of the impugned order. 5. Learned Counsel for the Petitioner invites my attention to the material facts to contend that by no stretch of imagination, the lands can be termed as agricultural lands. He further says that Respondent cannot be said to be a tenant in the eye of law. He says that the evidence recorded supports his submission. He relies on a judgment of a Division Bench of this Court reported in 1979 (1) KLJ 412. 6. Per contra, learned Counsel for the contesting Respondent submits that the property was converted in the year 1985. He says that a careful reading of the deed would show a tenancy in favour of the contesting Respondent. Counsel also says that presence of coconut trees and also says that presence of coconut trees and other trees would support the factum of agricultural land. He relies on a judgment of this Court in Hosabayya Nagappa Naik and Others Vs. State of Karnataka and Others, ILR (2002) KAR 1342 . 7. After hearing the learned Counsel on either side, the following order is passed. 8. Section 77-A of the Karnataka Land Reforms Act provides for grant of lands in certain cases. He relies on a judgment of this Court in Hosabayya Nagappa Naik and Others Vs. State of Karnataka and Others, ILR (2002) KAR 1342 . 7. After hearing the learned Counsel on either side, the following order is passed. 8. Section 77-A of the Karnataka Land Reforms Act provides for grant of lands in certain cases. It provides for three contingencies namely; (1) that a person was immediately before the first day of March, 1974 in actual possession and cultivation of any land not exceeding one unit, and (2) that person being entitled to be registered as occupant of such land under Section 45 or 49 has failed to apply for registration of occupancy rights in respect of such lands under Sub-section (1) of Section 48A within the period specified therein. (3) that person has continued to be in actual possession and cultivation of such land on the date of commencement of the Karnataka Land Reforms (Amendment) Act, 1997. 9. A Division Bench of this Court in the reported judgment in Hosabayya Nagappa Naik and Others Vs. State of Karnataka and Others, ILR (2002) KAR 1342 , has ruled as under; The object of the Section is to provide an opportunity to those who may have been truly and lawfully tenants of the land, who were in possession and cultivation and continued to be in possession and cultivation, who might have missed the bus by not making an application within the stipulated period which in fact had come to be extended from time to time and to ensure that their possession and cultivation is continued without being disturbed any further. (Underlining is mine) 10. Therefore what is clear to me is that the object of Section 77A is nothing but an extension granted in the matter of rights to a bus missing agriculturist who continued to be in possession and occupation of the lands on the amended dated of the Act. 11. Under the Karnataka Land Reforms Act, land has been defined to mean 'agricultural land'. That is to say land which is used for or capable of being used for agricultural purposes. Section 77 in the light of the definition of land would indicate that the grant is to be in respect of an agricultural land so that a lawful tenant who is in possession of such land is continued to do his agricultural operation as before. 12. Section 77 in the light of the definition of land would indicate that the grant is to be in respect of an agricultural land so that a lawful tenant who is in possession of such land is continued to do his agricultural operation as before. 12. Admitted facts reveal that Respondent No. 3 is claiming tenancy in terms of Annexure-B. A reading of the deed would show that even in the year 1942, a building did exist in the lands, in addition to a few trees. It is also seen from the material on record that the said land is subsequently converted in the year 1985 and the municipality is collecting taxes towards the occupation of the building. Two statements were recorded before the Assistant Commissioner. Respondent No. 1 has admitted that there is a house with coconut trees. Respondent No. 2 has also stated the same thing. In the light of these documentary/oral evidence, what is clear to me is that a house with a few coconut trees were made over to the tenant. Learned Counsel for the Petitioner, in the given set of facts is right in his submission that the tribunal has not applied its mind to the material facts in the matter of considering as to whether this piece of property can be considered to be a land under the Act. The definition of land as I mentioned earlier emphasizes agricultural operation. In the case on hand, in the light of the material on record, it cannot be said that this property is used as an agricultural land or is capable of being used an agricultural land. The argument of Mr. Bhat, learned Counsel for the Respondent that the existence of coconut trees would prove agricultural operation is difficult to swallow in the given set of facts. The existence of coconut trees would not by itself is a factor to prove agricultural operation in terms of the Act. The tribunal in these circumstances has committed a serious legal error in granting this property in terms of Section 77A to the tenant as land to the Respondent under the Act. The finding of tribunal in these circumstances is liable to be interfered with in the case on hand. Moreover the Petitioner has raised this plea specifically before the Assistant Commissioner. 13. The finding of tribunal in these circumstances is liable to be interfered with in the case on hand. Moreover the Petitioner has raised this plea specifically before the Assistant Commissioner. 13. In this connection it is appropriate to notice a Division Bench judgment of this Court in the case of Vanajakshi Vs. Land Tribunal, Udupi 1979 (1) KLJ 413. The Division Bench has ruled as under: In determining the dominant character of the premises, i.e., whether agricultural or non-agricultural, no one factor is decisive and the cumulative effect of all factors should be considered. It is not unusual to find residential houses with extensive compounds having a number of fruit bearing trees. It is not unusual to install electric pumps and storage tanks for watering trees and plants in compounds of such houses. The number of trees in the premises in question is not so large as to regard the same as an agricultural garden land. Especially in Dakshina Kannada District most houses in towns are surrounded by coconut trees and other fruit bearing trees and will have kitchen gardens. This judgment is squarely applicable to the facts of this case. In this case also the property is situated in Dakshina Kannada and the property is situated in a town and is being assessed by Municipality. In addition, the subsequent developments show the change of character of the land. Taking into consideration all these aspects of matter, I have no hesitation in accepting the contention of the Petitioner in this case. 14. The second question is whether the first Respondent is continuing his avocation as an agriculturist in this case. Mr. Bhat, learned Counsel invites my attention to the material facts to contend that the lands were agricultural in character and is being continued as such. Counsel says that in terms of Section 77 the Respondent was cultivating right from 1942 and was in possession in that capacity and therefore the subsequent development of conversion cannot be a ground to deny the grant in his favour. This argument is totally unacceptable to me. The object of the Act is to provide land to a land-less tiller. A Division Bench judgment Hosabayya Nagappa Naik and Others Vs. State of Karnataka and Others, ILR (2002) KAR 1342 on which reliance is placed may not come to the rescue of the Petitioner in this connection. This argument is totally unacceptable to me. The object of the Act is to provide land to a land-less tiller. A Division Bench judgment Hosabayya Nagappa Naik and Others Vs. State of Karnataka and Others, ILR (2002) KAR 1342 on which reliance is placed may not come to the rescue of the Petitioner in this connection. The Division Bench has stated in unmistakable terms in para 7 as under: The provisions of Section 77A is for the purpose granting of land on satisfaction of certain conditions namely three conditions mentioned therein. It is to be noticed that conditions (1) and (2) are conditions which should have been satisfied and foregone in respect of the land. It is not an enquiry to ascertain whether a person can be granted land being a tenant as on the appointed date such an enquiry was within the scope of Section 48A and not for the purpose of condition (1) of Section 77A. Here the enquiry is only for a limited purpose to find out the accomplished fact as to whether the persons was in actual possession and cultivation of the land on the appointed date. It is not as though the authorities are to hold an enquiry for the purpose of conferment of occupancy rights on the premise that the applicants were lawful tenants on the appointed date and the enquiry was for such purpose. The factum of the applicants being a lawful tenant on the appointed date and was in cultivation as on the appointed date is not be established now in the present enquiry, but it should have been a concluded fact that the scope of the present enquiry is to let in evidence to satisfy or prove the existence of such a concluded fact. It is for the applicant to show that it was an undisputed fact and on record and that without anything further more he was a tenant lawfully in possession and cultivation of the land on the appointed date. The second condition is also of significance and importance in the context of considering the application i.e., the land should have been vested in the State Government as on the appointed date as it was a tenanted land. The second condition is also of significance and importance in the context of considering the application i.e., the land should have been vested in the State Government as on the appointed date as it was a tenanted land. This again is an event which should have already taken place and as such the evidence that is required to be placed by the applicant to show that this is an event that has taken place already. Obviously it should find a place in some official record, as vesting of the land is in favour of the State Government, in the absence of any such record is again becomes a disputed fact which again is not within the scope of an enquiry under Section 77A of the Act. If these two conditions are fulfilled then there is the necessity and scope for inquiring with regard to the third condition namely as to whether the applicant has continued to be in possession and cultivation of such land as on the date of the commencement of the amending Act i.e., 1.11.1998. 15. Mr. Bhat, learned Counsel tries to say that the Petitioner has fulfilled the two conditions and therefore the third condition of being in possession and cultivation is not necessary. And the alternative argument is that mere possession is sufficient for the purpose of Section 77 (i) and (iii). I am afraid that this argument is not available to the Petitioner. First of all I have already held that the Petitioner cannot be termed as a tenant and therefore the very application is not maintainable. I have further held that the lands in question are not agricultural in character. Even assuming in favour of the Respondent, in terms of Section 77(iii), he should not only be in possession, but he must be cultivating the land as on the date of the commencement of the Act, i.e. 1.3.1974. In the case on hand, it cannot be said that it was a tenanted land as on 1.3.1974. Mere presence of a few coconut trees does not in terms of the Division Bench judgment prove any agricultural operation. Therefore as on the date of the grant, it cannot be said that the Petitioner was in possession and cultivation of the land. 16. Mere presence of a few coconut trees does not in terms of the Division Bench judgment prove any agricultural operation. Therefore as on the date of the grant, it cannot be said that the Petitioner was in possession and cultivation of the land. 16. Further I deem it proper to say in this judgment that any grant in terms of Section 77A is to achieve the laudable object of the Act. Only a person in possession and cultivation of agricultural land alone is entitled for grant. The authority has to satisfy itself that the claimant is not only in possession but also cultivating on the date of grant. In the case on hand, Respondent cannot be said to be cultivating the lands in the given set of facts. Therefore, learned Counsel for the Petitioner is right in his submission. 17. I must also add a word of caution to the authorities while dealing with such applications. These applications are to be taken very seriously and the grant is made to a right person for a right cause in terms of the Act. Any grant in a casual manner would result in defeating the very object of the Act. Therefore the authorities are not only to be satisfied about the claim but also the claim of being granted to sub-serve the goal of granting lands for the purpose of cultivation and not for any other purpose. In these days of commercialization, the grant should not result in a commercial venture. Therefore, I deem it proper to rule that the authorities are to see that on the date of the grant the persons who applied for grant are not only in possession but also cultivating the lands in terms of the definition of 'land' of the Act and subject to the conditions in Section 77A of the Act. 18. In the result, this petition is allowed. The impugned order is set aside thereby ordering dismissal of the application filed by the Respondent as not maintainable in terms of the Act. Ordered accordingly. No costs.