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2003 DIGILAW 138 (KAR)

Severine Pinto v. H. J. Mascarenhas

2003-02-10

M.F.SALDANHA, M.S.RAJENDRA PRASAD

body2003
JUDGMENT M.F. Saldanha, J.--Like the proverbial question from Hamlet, this High Court has been agitating the issue particularly in Land Reforms cases "to remand or not to remand" and this has been the subject matter of numerous decisions over the years. Having regard to the poor caliber of the Land Tribunals, the utter disregard for the procedure prescribed by law and the integrity levels which often raise a question mark, the High Court was inundated with a magnitude of thoroughly unsatisfactory orders and for a long time there was no option except to set them aside and remand the cases, often times with specific directions with regard to what was required to be done. The High Court at that time obviously overlooked the fact that the Tribunals were so brazen that they either disregarded the High Court orders or what was even better is that they passed fresh orders with a new set up of blunders and that explains the multiple remand phenomenon that is continued for close to three decades and during which in this field of law alone over 2,18,600 cases have been remanded. We need to put the brakes on this state of affairs as being felt necessary not only by this Court, but also the Apex Court and in the series of later decisions, this Court has considerably reduced remand orders in all except those few instances where it was absolutely inevitable. In the present instance, as we shall point out, the Appellant's learned Counsel submitted for a variety of reasons that a remand would be justified despite the length of the litigation, which commenced in June, 1977. It would be necessary for us to also record that with certain amount of ingenuity it would almost always be possible to contrive of an argument whereby the litigation can be kept alive and continued, but, the real question is as to whether this is permissible and in the public interest. The Courts must always bear in mind the fact that whenever indulgence is shown to one party to a litigation that it is at the expense of the opposite party, who is at the receiving end and what may appear to be sympathetic or compassionate justice to one turns out to be unfair and torturous to the opposite party. 2. The Courts must always bear in mind the fact that whenever indulgence is shown to one party to a litigation that it is at the expense of the opposite party, who is at the receiving end and what may appear to be sympathetic or compassionate justice to one turns out to be unfair and torturous to the opposite party. 2. The present appeal has been directed against a decision of the learned Single Judge in Writ Petition No. 25934 of 1993 decided on 24.10.2000. The late husband of the Appellant before us had applied to the Tribunal through Form No. 7 on 27.7.1974 where by he had claimed occupancy rights in respect of eight items of lands totally measuring about seven acres. The Tribunal, through a majority Judgment, the Chairman dissenting but the other four members overruling him, granted occupancy rights and that decision was the subject matter of challenge through the writ petition in question. The learned Single Judge allowed the petition and set aside the decision of the Tribunal and we may summarise the reasons for doing so. It was because, there is a clear-cut finding to the effect that the lands in question are punja lands or in other words, dry lands which are not cultivated and that consequently, no occupancy rights could be granted in respect thereof, as it was a condition precedent under the provisions of the Land Reforms Act that the land in question must answer to the description of agricultural land. The learned Single Judge has, interalia, relied on one of the later Division Bench decisions reported in Subhakar and Others Vs. The Land Tribunal, Karkala Taluk, Karkala and Others, (1999) 4 KarLJ 524 , wherein the Division Bench of this Court has unequivocally held that there can be no question of granting occupancy rights in respect of punja lands. The supplementary ground upheld by the learned Single Judge was that the revenue records do not support the claim of the applicant for grant of occupancy rights and that this was an additional ground for disqualifying him. The supplementary ground upheld by the learned Single Judge was that the revenue records do not support the claim of the applicant for grant of occupancy rights and that this was an additional ground for disqualifying him. The applicant having passed away, his widow has challenged the decision of the learned Single Judge through the present appeal and the dual contention canvassed before us is to the effect that even dry lands are punja lands, if they are capable of being used for agricultural purposes, and come within the definition of 'land' as envisaged by Section 2(18) of the Land Reforms Act, that factually the lands are not barren lands, that there are several fruit bearing trees on those lands, and that consequently, they would answer to the description of an orchard, and the consequently, the learned Single Judge was in error in having disqualified the Appellant. The supplementary contention canvassed was to the effect that the powers exercised by the High Court under its writ jurisdiction are not parallel to the appellate powers, that the scope is limited, and that once the Tribunal had, through a speaking order, arrived at a particular decision on merits, that interference was not justified. On behalf of the land owners, the order of the learned Single Judge was stoutly defended. The learned Government Pleader pointed out that the Tribunal had seriously erred in conferment of occupancy rights in the face of record that the facts did not justify it and that the learned Single Judge had acted well within his jurisdiction in having corrected the error in question. Also, the learned Government Pleader opposed the plea for a further remand on the ground that the law does not contemplate multiple opportunities that the litigation had gone on for long enough and that nothing more could be produced to supplement the present record and consequently that the decision of the learned Single Judge required to be confirmed. 3. The principal submission canvassed by the Appellant's learned Counsel revolves around the finding of the learned Single Judge, which is to the effect that the lands in question are punja lands. The learned Single Judge proceeded on the footing that there were references in the original Form No. 7 itself to the effect that the lands were punja lands and that this position is supported by some of the relevant entries in the other records. The learned Single Judge proceeded on the footing that there were references in the original Form No. 7 itself to the effect that the lands were punja lands and that this position is supported by some of the relevant entries in the other records. The learned Counsel submitted that this categorisation or classification proceeds on the basis of what is written in the records at some point of time, but, out attention was drawn to several other parts of the records wherein there are clear cut reference to the effect that there is some vegetation on the lands in question and a specific reference was to the effect that there are cashew trees growing in that area. On the basis of this material, the submission that was canvassed was that the definition of land under Section 2(18) of the Land Reforms Act is a rather wide definition and that it is now well settled law that the term 'agricultural land' as understood within the framework of the Land Reforms Act is not confined to lands where 'crops' in the traditional sense of the term such as paddy or sugarcane and the like are cultivated, but that it would extend to a variety of other agricultural use which could include vegetables, flowers, and for that matter, even a fruit orchard. The learned Counsel was at pains to point out to us that there are specific areas in the State wherein cultivation is exclusively of fruit trees such as mango orchards and it was her submission that the present lands have a large number of cashew trees on them which crop again is harvested for a variety of purposes. Her limited submission was that, if the learned Single Judge felt that there is some conflict between the expression 'punja lands' in some part of the record and reference to the existence of vegetation in other parts of the record, that the correct course of action would be to direct a fresh and specific enquiry addressed to this issue so that it could be correctly resolved. Her submission was that once the Tribunal, that too after a spot inspection was satisfied and was of the opinion that occupancy rights could be granted, that setting aside the order on the part of the learned Single Judge was unfair and incorrect to the applicant-Appellant, particularly since there was certainly something to be said in favour of either of the views. 4. Mr. Hegde, learned Counsel who represents the contesting land owners, as also the learned Government Pleader, were both unanimous about the fact that the admission on the part of the applicant right from the initial stages that these lands are punja lands which is borne out by the relevant revenue records virtually concludes the matter and that some stray statements to the effect that a few cashew trees are supposed to be in existence on the land cannot alter the true nature and complexion and character of the lands in question. In law, their contention was that, it is a condition precedent before the provisions of the Land Reforms Act can be made operative that it should be unequivocally demonstrated that the lands are agricultural lands in the true sense of the term. Their contention was that this concept pre-supposes the fact that crops are raised on a regular basis and that they are harvested. Their last submission was that as far as the coastal areas are concerned, that the existence of cashew trees is something that would be found even in forest areas and that this could not help the case of the Appellant. 5. We have a very clear-cut evaluation to do as far as this part of the case is concerned. Normally, the Court would, in matters of classification, be guided totally and completely by the entries in the revenue records. But, in this case, it is undisputed that these particular lands are punja lands. The argument that this is a rebuttable presumption may be technically correct, but, in this case, it would be difficult to get away from that position, because, even the original Form No. 7 itself contains the admission. More importantly, there is a presumption in law that Government records maintained in the normal course of business are presumed to be correct and if the contention raised is that this categorisation was incorrect, then, the onus shifts to the Appellant and that onus had to be discharged to the hilt. More importantly, there is a presumption in law that Government records maintained in the normal course of business are presumed to be correct and if the contention raised is that this categorisation was incorrect, then, the onus shifts to the Appellant and that onus had to be discharged to the hilt. A mere reference or statement to the effect that the lands in question have some vegetation on them will not change the classification because the real question for determination is not as to whether the lands are barren or whether there is some vegetation on them, but the issue is as to whether they are agricultural lands under cultivation in the traditional sense of the term. We do concede that the nature of the crops or the produce could vary drastically, but, the essential requirement is that an agricultural operation in the true sense of the term is required to be carried out on a regular basis, and there is no evidence whatsoever to discharge this burden. As regards the submission canvassed that a further opportunity be afforded to the Appellant through a remand in order to substantiate the contention that these are not punja lands is concerned, we need to point out that the heads of evidence referred to by us are virtually irrefutable particularly the admissions and no amount of oral evidence from any of the parties and that too 30 years after the Land Reforms Act has come into operation, would serve no purpose whatsoever. This is not a case that has gone by default. It has been vigorously contested and the parties have produced everything that was conceivably possible. The original applicant has died. The original land owner has also died. At this late point, assuming for theoretical reasons a remand was to be directed, it would be of virtually of zero value. Remands are permissible if due to unfortunate reasons the case has gone by default, or remands may be even desirable or necessary where a party is able to satisfy the High Court that it has specifical material which if placed before the Tribunal would alter the verdict. Remands are permissible if due to unfortunate reasons the case has gone by default, or remands may be even desirable or necessary where a party is able to satisfy the High Court that it has specifical material which if placed before the Tribunal would alter the verdict. There are other situations which we do not need to paraphrase separately but which would all come under the broad umbrella under the term manifest miscarriage of justice where the result on the earlier occasion is something that ought not to have taken place at all and it is in this instance that a remand may even be incumbent. There is nothing placed before us or for that matter before the learned Single Judge that would justify a remand or for that matter if placed before the Tribunal could alter the decision drastically. 6. The second broad head of conflict and one which is of even greater significance revolves around the finding of the learned Single Judge which in terms holds that the lands in question having been categorised as punja lands cannot come within the extended definition of the term 'land' capable of being used for agricultural purposes. Appellant's learned Counsel submitted that there is nothing on record to indicate that these lands consist of rocks or sand or are so barren that they are incapable of being used for agricultural operations. Our attention was drawn to the host of decisions wherein the Courts have held that lands which support primary agricultural purposes such as for instance areas from which fodder is procured or areas from which leaf manure is procured or areas which otherwise lend a supportive role of primary agricultural operations, would come within the definition of 'agricultural land' and the submission canvassed here is that even if no crops are grown on these lands, that they are capable of supporting the agricultural operations in the vicinity, particularly by providing the requisite leaf manure, etc. Secondly, what was contended was that even in the decision reported in Subhakar and Others Vs. Secondly, what was contended was that even in the decision reported in Subhakar and Others Vs. The Land Tribunal, Karkala Taluk, Karkala and Others, (1999) 4 KarLJ 524 , the Division Bench had occasion to hold that the lands on which only grass is grown naturally without human efforts to make such grass grow is categorised as punja land in the District of Dakshina Kannada and that they are not brought under cultivation and hence is not a land within the meaning of Section 2(A)(18) of the Act. The Division Bench did make an exception while pointing out that where punja land was brought under cultivation, it can be considered as agricultural land. The learned Counsel submitted before us that the real test is not actually as to whether punja land as indicated had been brought under agricultural cultivation, but the actual test is by determining as to whether it is capable of being used for agricultural cultivation. On this basis, it was submitted that unless there is conclusive evidence on record that the land is incapable of being used for agricultural cultivation, that the grant of occupancy rights cannot be refused. 7. Again, in response to this submission, both the Respondents' Counsel and the learned Government Pleader very strongly submitted before us that the Division Bench was only dealing with an exceptional situation insofar as it was not ruling out the possibility of punja lands being some times converted into agricultural lands and if such a transformation has taken place that then the grant of occupancy rights is not barred. Their submission was that there is a broad distinction between the lands regularly used for agricultural cultivation and other green areas which are either incapable or which are not used and that the second category can never be equated with the first. Their further contention was that the definition under the Act must be confined to its intent and purpose and cannot be unduly stretched to include the lands that the legislature never intended. 8. Again, we desire to set at rest this unnecessary controversy which has resulted in a large number of instances where areas of land that could never be included under the definition as appears in this Act have been bracketed only because of the argument that they are capable of being put to agricultural cultivation. 8. Again, we desire to set at rest this unnecessary controversy which has resulted in a large number of instances where areas of land that could never be included under the definition as appears in this Act have been bracketed only because of the argument that they are capable of being put to agricultural cultivation. We need to illustrate a rather extreme example that through revolutionary techniques, science has been able to convert even parts of the Sahara desert into an orchard or for agricultural operations and it is not those sort of unusual and exceptional situations that the law envisages here. What is includable under the definition of land is only those small areas which form part and parcel of the agricultural support operations, such as an area where green manure is specifically procured from and in other words, an area where this is specially grown in order to support the agricultural operations. If, for instance, green manure is procured from the adjoining forest, that forest is not includable. Similarly, if there is an open area around the fields which is used for storage purpose or for agricultural operations, such as collection of produce, processing and the like, if there are farm/store houses and cattle sheds, on pieces of land which are not being physically cultivated, but which form an integral part of the cultivation process, these could be includable, but, what would be specifically excluded is open areas that have hitherto not been brought under cultivation for obvious reasons that they are unsuitable and all those areas which for the aforesaid reason come under the definition of punja lands. The question is not as to whether through some special process or super-human techniques, these lands could be converted into fields, but the question is as to whether in the ordinary course of agricultural operations, it could be said that these areas are includable. Unfortunately, in the course of several of the decisions, the law has been stretched virtually out of proportion and context and it has virtually defeated the legislative intent and we have no intention of supporting such a view. It is for this reason that it became necessary for us to set at rest this controversy that has reached unfortunate proportions in many instances. In the present case, the lands have not undergone any transformation to convert them into agricultural lands. It is for this reason that it became necessary for us to set at rest this controversy that has reached unfortunate proportions in many instances. In the present case, the lands have not undergone any transformation to convert them into agricultural lands. It is also obvious to us from a careful study of the record that the existence of some trees is not due to any special human agricultural or horticultural process and consequently, whichever way the record is looked at, it would be impossible to hold in this case that these lands are capable of being used for agricultural cultivation. 9. The learned Single Judge has also held against the Appellant on the ground that the R.T.C. for the year 1968-69 does not mention the name of the Appellant either as a tenant or cultivator. In response to this, the Appellant's learned Counsel submitted that the R.T.C. for one year is not the true indication of the correct state of affairs and secondly, what he submitted is that, in numerous instances, the R.T.C. does not represent the true facts and that was why the Tribunal has proceeded on the basis of a physical inspection. Our only answer to this argument is that it was always open to the Appellant, if the R.T.C. for this particular year was incorrect, to have produced documents for other periods particularly the year 1973-74, if any such documents represent the name of the Appellant either as a tenant or cultivator. Not a shred of evidence has been produced which in terms conforms the view of the learned Single Judge that as per the entries, it is obvious that the land owner was cultivating the lands through the medium of agricultural labour. The mere presence of the Appellant on the premises opens up numerous possibilities including the fact that the applicant, as happened in one case, could have been engaged to watch over the property or to carry out some work there or, as often happened in earlier times, could have been even permitted to reside there without conferment of any tenancy. It is the occupation in the status of a tenant or cultivator which is required to be established and not mere presence and that too at a far remote point of time but on the appointed date that matters. It is the occupation in the status of a tenant or cultivator which is required to be established and not mere presence and that too at a far remote point of time but on the appointed date that matters. The site inspection carried out in the year 1994 is of no consequence and the oral statements from persons in the area are of equally weak evidence and this can never override the revenue entries. 10. Lastly, what was submitted before us was that the learned Single Judge had exceeded his jurisdiction insofar as he has virtually exercised the appellate powers in a proceeding under Article 226 of the Constitution, and the evidence has been virtually re-appreciated which is impermissible and that on this ground alone, the order requires to be set aside and even if this Court has any reservation with regard to the correctness of the Tribunal's order, that the only course open is to redirect the Tribunal to reconsider the case accordingly. We are conscious of the limits of the jurisdiction under Article 226 of the Constitution, but, there are no straight jacket formulae, which restrict the powers of the Court and circumscribe them. The Appellant's learned Counsel is right when she points out that the High Court cannot and will not act as a Court of appeal, but, a perusal of the order passed by the learned Single Judge indicates that he has only referred to selected parts of the record and has decided the entire case on the basis of a legal appraisal. It is really an exercise of correcting the decision making process where the Tribunal had arrived at a conclusion which was unjustified from the record. The High Court has not reappreciated the evidence nor has the learned Single Judge exercised any appellate powers in this case and in our considered view, the manner in which the learned Single Judge has dealt with the proceeding is in strict conformity with the exercise of powers under Articles 226 and 227 of the Constitution i.e. judicial review. 11. We shall briefly refer to the decisions cited by the Appellant's learned Counsel before us which are as follows: (1) 1981 (1) Kar.L.J. 118 (2) Shiddappa Kariyappa Gouda and Another Vs. The Land Tribunal, Ranebennur and Others, AIR 1978 Kant 53 (3) Subhakar and Others Vs. 11. We shall briefly refer to the decisions cited by the Appellant's learned Counsel before us which are as follows: (1) 1981 (1) Kar.L.J. 118 (2) Shiddappa Kariyappa Gouda and Another Vs. The Land Tribunal, Ranebennur and Others, AIR 1978 Kant 53 (3) Subhakar and Others Vs. The Land Tribunal, Karkala Taluk, Karkala and Others, (1999) 4 KarLJ 524 (4) Ramachandra Devastanam, Sawada Vs. Subbanna Shetty and Others, ILR (1998) KAR 1588 (5) 1981 (2) Kar.L.J. 221 (6) 1999 (1) KCCR .5. (7) A.I.R. 1981 Kar. 7 (8) Moulasab (Deceased) By L.Rs and Others Vs. Moulasab and Others, ILR (1998) KAR 2870 (9) Alban D'Souza Vs. The Land Tribunal, Udupi and Others, ILR (1999) KAR 243 (10) 1978 (1) Kar.L.J. 307 (11) 1980 (2) Kar.L.J. . 65 (12) 1980 (1) Kar.L.J. 153 (13) I.L.R. 1999 Kar 2721. 12. In the course of this Judgment, what we have done is to have carefully culled out the various principles of law that have emerged from these decisions, some of which have been approved of by us and in respect of many others where we have indicated the legal position that obtains and which is required to be applied in this category of cases. We have been conscious of the views expressed by the Courts on different occasions under different situations. We have examined these decisions and we have taken careful note of the reasoning in each of these cases, while deciding this appeal. Having done so, in our considered view, it is necessary to also set at rest some of the areas wherein, for a variety of reasons, propositions were either upheld or propounded which resulted in a host of unjustified remands and many instances of even unjust orders being passed. What the Court can never lose sight of the fact is that the ambit and spirit of the Land Reforms Act was specifically promulgated to ensure that the land went to the tiller of the soil. The Land Reforms Act was not intended for persons other than genuine agricultural tenants and cultivators to put forward spurious claims or that indiscriminate attempts on the part of agricultural labourers, watchman, tenants of structures or even busy bodies who are nothing to do with the land taking advantage of the absence of the land owners or their infirmity and depriving them of the lands. It is necessary that the Courts must discriminate between the genuine and the non- genuine and that the law must be strictly and correctly applied without leaning in favour of any misplaced sympathetically. This would also include allowing situations to continue wherein the parties who have no case continue for decades together keeping litigation alive in order to continue in possession. These are all issues which the Court is required to guard against in the process of decision making. It is under these circumstances that this Court has been required to make some very definite distinctions/observations between the small category of cases where remands are justified and in the majority of cases wherein no remand is permissible or should be ordered. 13. Having heard the learned Counsel in detail and on merits and having reappraised the record, we see no ground on which the order passed by the learned Single Judge can be interfered with. The appeal fails on merits and stands dismissed. No order as to costs.