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2002 DIGILAW 693 (KAR)

RAMDAS G. BALIGA v. STATE OF KARNATAKA

2002-11-14

M.F.SALDANHA

body2002
SALDANHA, J. ( 1 ) AN extremely unusual situation has arisen in this appeal which necessarily calls for a very special level of innovation in the matter of moulding of the reliefs that can be granted. The appellant before us is the original land holder and he has contended that the land in question which originally measured 3 acres and 81 cents out of which, some portion was acquired and now measures 3 acres 31 cents was leased out to the tenant under a restrictive lease. This is a special aspect of the case that has been highlighted by the appellants learned Advocate who submits that the Tribunal and the learned Single Judge while granting and confirming the occupancy rights in favour of the tenant have overlooked this crucial aspect. There can be little dispute about the fact that the lands were let out to the tenant on lease in or about the year 1959 and that on the appointed date, the tenant did satisfy the basic requirements. This is the main reason why the occupancy rights have been conferred on the tenant but the point raised by the appellants learned Advocate is that if the terms of the lease are scrutinised, it will be found that while the lands have been let out to the tenant for cultivation, and a certain rent has been fixed, that there is a restrictive covenant in the lease itself which prescribes that the landlord retains the right to use the land during the non-cultivation part of the year since it is located in the center of the town, for public performance, such as yakshagana, circuses etc. , Mr. Jains submission is that if this Court were to thereafter scrutinise the evidence lead before the Tribunal what emerges is that only one crop of paddy per year was being cultivated possibly during the wet season and that during the rest of the year, the landlord was giving out the land for these performances and recovering the rent. There is a specific provision to this effect in the lease agreement. The submission canvassed therefore is that it is wrong to hold that the lands are agricultural lands because under section 2 (18) of the Act, if the record undisputedly establishes that the land was being used exclusively for non-agricultural purposes then the grant of occupancy rights would not be permissible. The submission canvassed therefore is that it is wrong to hold that the lands are agricultural lands because under section 2 (18) of the Act, if the record undisputedly establishes that the land was being used exclusively for non-agricultural purposes then the grant of occupancy rights would not be permissible. On the other hand, the reverse argument that has been put forward by the respondents learned Advocate Mr. Nataraj is that undisputedly agricultural operations were being carried out on the lands as the records indicate and the evidence indicates and that consequently it does answer to the description of land within the meaning of Section 2 (18) of the Land Reforms Act and the sequete is, according to him, that his client who comes within the definition of tenant under section 2 (34) of the Act is straightaway entitled for the grant of occupancy rights. This is an extremely fluid position and we have sought the assistance of the learned Government Advocate for purposes of resolving the matter and he has very rightly brought it to our notice that in the unusual facts and circumstances of the case, this land answers to the description of agricultural land for a restricted part of the year which can be defined as 1/3 of the year and that undisputedly it does not answer to this definition for the remaining part of the year. In these circumstances, his submission is that the only correct and fair verdict could be that the Court would have to restrict the rights that are granted as otherwise it would be injustice to one or other of the parties. ( 2 ) BEFORE proceeding further, we need to deal with another submission canvassed by the Respondents learned Advocate Mr. Nataraj wherein he has contended that under the operation of this act as long as the conditions are fulfilled, there is a vesting of the land in the Government on the appointed date and his submission is that once the land is vested, if the tenant satisfies the conditions that it would have to be allotted to him and the occupancy rights would have to be granted. We have examined this argument very carefully in the light of the very very unusual facts of this case and while the learned Counsel is technically right in his submission, we cannot ignore that part of the record which indicates that for part of the year under the agreement itself, neither the possession nor for that matter, the agricultural cultivation was in the hands of the tenant. The only rational resolution of this extremely difficult situation would be to amplify the formula suggested by the learned Government advocate which we have done and in our considered view, the Court would have to hold that there has been partial vesting and if there is partial vesting then the occupancy rights would also have to be granted partially and not wholly in respect of the land. The evidence seems to indicate that one crop was permitted all through and that was the factual position and under these circumstances, the appellants learned Advocate has submitted that 1/3 of the rights only should go to the tenant. We have assessed the record very carefully. We have considered the facts and circumstances of the case and more importantly, the dimensions of the land in question which are relatively limited. In our considered view, the formula of 1/ 3 and 2/3 would have to be applied, that the 1/3 portion going to the landlord and 2/3s to the tenant. The reason for this is because there is no other rational method of resolving the situation without doing injustice to both the parties. ( 3 ) WE need to deal with another aspect of the case viz. , the question as to whether at all interference is competent in this case. Mr. Nataraj drew our attention to a decision of the Supreme Court reported in AIR 1964 SC 477 wherein the Supreme Court had very clearly indicated that the writ jurisdiction is distinguisable from the jurisdiction of the High Court while entertaining Regular Civil Appeals and that consequently, on a finding of fact, the Court would not sit in appeal while exercising writ jurisdiction. The learned Counsel submitted that the factual position what is in dispute here is that it has been carefully assessed and correctly decided by the Tribunal and confirmed by the learned Single Judge and consequently, there is no question of reopening it. The learned Counsel submitted that the factual position what is in dispute here is that it has been carefully assessed and correctly decided by the Tribunal and confirmed by the learned Single Judge and consequently, there is no question of reopening it. We are unable to agree with this submission because the position that emerges is really a law point on the application of the law and like all situations it is a mixed question of fact and law and where the lower authorities have erred, the exercise of jurisdiction of the Appellate Bench would certainly be competent. ( 4 ) NEXT, our attention was drawn to the decision of this Court reported in ILR 1993 KAR 1421 where again the Court sounded a note of caution insofar as the restrictions applicable to the High Court while exercising powers under Article 226 of the Constitution are distinguished from the appellate powers. Mr. Natarajs submission was that the appellant is virtually asking for a reassessment of the evidence on record and that there is a total bar to doing this particularly at the writ appeal stage. While the principle is absolutely correct we need to point out that this Court is not reassessing the record but that this Court is applying the law for the purpose of correcting an error in the conclusions or findings recorded by the earlier authorities. Lastly, Mr. Nataraj drew our attention to the division bench decision of this Court reported in ILR 1995 KAR 768 wherein the Court has set at rest the question as to whether an appeal to the Division Bench would lie in a situation where the High Court has exclusively exercised the power under Article 227 of the constitution. Mr. Natarajs submission is that in all these cases, the high Court is exercising only supervisory jurisdiction, that in law once the supervisory jurisdiction has been exercised by the learned single Judge that the Division Bench should refuse to interfere and that in fact no appeal is maintainable. While the legal position enunciated by the learned Counsel may be right, all these appeals which have come to the High Court back from the Appellate Authority established under the Land Reforms Act have been converted into writ Petitions under Article 226 of the Constitution of India and in our considered view, there is absolutely no bar to the maintainability of this appeal. ( 5 ) HAVING regard to our findings on the basic question, all that we need to do is to modify the original order of the Tribunal and to hold that the occupancy right granted in favour of the Respondents - tenants would be limited to an area extending to 2/3s of the original area. In otherwords, the Tribunal would have to demarcate the balance area of 1 acre 10 cents on the side away from the respondents house and limit the occupancy rights to the remaining area and hand over possession of the balance area to the appellant. We make it clear that this procedure shall be carried out only after the standing crops if any are removed. The appeal succeeds to this extent and stands disposed of. No order as to costs. --- *** --- .