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2006 DIGILAW 395 (KAR)

ADMAR MUTT, UDUPI v. RAMA SHETTY (DEAD) BY L. RS

2006-04-20

R.GURURAJAN

body2006
ORDER Petitioner is before me challenging the order of the Land Tribunal dated 29-1-2003, Annexure-J in the case on hand. Facts in brief are as under: Sri Rama Shetty, was a tenant of several lands. However, he was not a tenant of land measuring 14 acres 13 cents in Sy. No. 48/2; 3 acres 21 cents in Sy. No. 347/1. He was also not the tenant of 3 acres in Sy. No. 347/1,21 cents in Sy. No. 46/5A, 24 cents in Sy. No. 31/5A, 1 cent in Sy. No. 46/1. This petition is confined to the lands in 14 acres 13 cents in Sy. No. 48/2, 2 acres 32 cents in Sy. No. 347/1, 68 cents in Sy. No. 347/1,21 cents in Sy. No. 46/5A, 24 cents in Sy. No. 31/5A, 1 cent in Sy. No. 46/1. Rama Shetty is no more and he is represented by his legal representatives respondents 1 to 7. Rama Shetty filed Form 7 seeking occupancy rights in respect of 26 lands situated in Shivalli Village. In that Form 7 he had claimed 4 acres 13 cents in Sy. No. 48/2, 3 acres 21 cents in Sy. No. 347/1 only. However, he had not claimed in that Form 7 Sy. No. 46/5A and Sy. No. 31/5A, however he had only claimed 3 acres 21 cents in Sy. No. 347. He had also not claimed 14 acres 13 cents in Sy. No. 48/2 but had only claimed 4 acres 13 cents. He had also not claimed 1 cent in Sy. No. 46/1 which is now granted. 2. Sri Rama Shetty challenged the said order in W.P. No. 25041 of 1981 contending that he was also entitled to get 4 acres 12 cents in Sy. No. 48/2 and 3 acres 21 cents in Sy. No. 347/1. This Court remanded the matter insofar it related to the claim of Sri Rama Shetty in respect of Sy. No. 48/2 and Sy" No. 347/1. After remand, petitioners submitted their objections with regard to the claim of the Sri Rama Shetty. Written submissions also filed by Sri Rama Shetty. Land Tribunal conducted a survey but without notice to the petitioner. The Land Tribunal has now passed an order dated 29-11-2002 granting lands in Sy. Nos. 46/5A, 31/5A, 347/1 (portion) 347/1 (portion), 48/2 and 46/1. Aggrieved by this order petitioner is before me. 3. No statement of objections is filed. 4. Written submissions also filed by Sri Rama Shetty. Land Tribunal conducted a survey but without notice to the petitioner. The Land Tribunal has now passed an order dated 29-11-2002 granting lands in Sy. Nos. 46/5A, 31/5A, 347/1 (portion) 347/1 (portion), 48/2 and 46/1. Aggrieved by this order petitioner is before me. 3. No statement of objections is filed. 4. Sri Ashok Haranahalli, learned Counsel would argue that the order of the Land Tribunal is wrong for several reasons. He would say that the impugned order is beyond the scope of the remand order in terms of the earlier proceedings. He would elaborately argue that this Court remanded the matter only insofar as two lands are concerned in the writ petition filed by the respondent. He would also say that the Tribunal has also issued notice only with regard to the claim in respect of two lands. learned Counsel complains that the Tribunal while passing the order has considered several lands which according to him is impermissible in law. He would invite my attention to the material facts to say that there exists no agricultural tenancy for the purpose of grant of occupancy rights in respect of two lands in terms of the Karnataka Land Reforms Laws. He would say that the Tribunal by misconstruing the material on record has chosen to grant these lands. 5. Per contra, learned Counsel for the tenant would argue that the Land Tribunal has the necessary power under Section 48-A(6) of the Act to review its own order in the event of non-consideration of a claim for occupancy rights. He would say that though several lands were claimed, no orders were passed on that claim and that therefore the Tribunal is justified in granting occupancy rights in respect of the other lands which were not considered by it in the earlier order. His main argument is one of review of claim of other lands not remanded by this Court by the Land Tribunal. Insofar as other two remand lands are concerned, learned Counsel would say that his client is in possession and the material on record would support tenancy in the case on hand. 6. After hearing, I have carefully perused the order of the Land Tribunal. 7. Admittedly, the lands belonged to the Mutt. Contesting tenant filed Form 7 claiming several lands in several survey numbers. 6. After hearing, I have carefully perused the order of the Land Tribunal. 7. Admittedly, the lands belonged to the Mutt. Contesting tenant filed Form 7 claiming several lands in several survey numbers. This petition is confined to the lands measuring 14 acres 13 cents in Sy. No. 48/2,2 acres 32 cents in Sy. No. 347/1, 68 cents in Sy. No. 347/1, 21 cents in Sy. No. 46/5A, 24 cents in Sy. No. 31/5A, 1 cent in Sy. No. 46/1. The tenant is no more. He is represented by his legal representatives. On an earlier occasion, the Land Tribunal passed an order on 20-6-1981. That order is produced at Annexure-A. In the said order, the Tribunal granted occupancy rights insofar as several lands are concerned. However, the Tribunal did not grant any lands in Sy. No. 48/2 and 347/1. The non-grant in respect of these items was challenged in W.P. No. 25041 of 1981. This Court in the order dated 18-3-1983 has chosen to remit the matter only insofar as the claim in respect of 8y. No. 48 1 2 and 34711 in terms of its order. It is after remand, the Tribunal has chosen to issue notices to the parties in terms of the remand proceedings. Even notices and the material on record would show that the parties were concentrating only in respect of these two lands in terms of the remand order. The Tribunal however, has chosen to grant lands in respect of other survey numbers in the impugned order. In the light of the earlier restricted remand order, in my view, the Tribunal ought to have confined its enquiry only in respect of these two lands only. The Tribunal could not have considered the claim in respect other lands other than Sy. Nos. 48/2 and 347/1 as has been done in this case. In fact the contesting respondent would argue that the grant in respeCt of other lands is in the light of the power available to the Tribunal under Section 48-A(6) of the Land Reforms Act. The Tribunal could not have considered the claim in respect other lands other than Sy. Nos. 48/2 and 347/1 as has been done in this case. In fact the contesting respondent would argue that the grant in respeCt of other lands is in the light of the power available to the Tribunal under Section 48-A(6) of the Land Reforms Act. The said section reads as under: "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". A careful reading of the said section would show that the said power is available to the Tribunal but that power can be exercised only after notice and after evidence in terms of Section 48-A( 6) of the Act. It is seen that the Tribunal after referring to the order of the High Court could not have considered the claim in respect of the other lands without any application under Section 48-A(6) of the Act. It is seen that Section 48-A(6) can be invoked only on an application and after recording reasons in writing in terms of the proviso. It also provides for correction of the clerical or arithmetical mistake in the order passed by the Tribunal. In the case on hand, facts would show that the proviso to Section 48-A(6) is not at all available to the present set of facts. In these circumstances, as rightly pointed out by Sri Ashok Haranahalli, learned Counsel, I have no hesitation in setting aside the impugned order in respect of these lands. The impugned order is held to be unsustainable in law insofar as other lands, other than the two lands in terms of the order of this Court. 8. Insofar as the other two lands in Sy. Nos. The impugned order is held to be unsustainable in law insofar as other lands, other than the two lands in terms of the order of this Court. 8. Insofar as the other two lands in Sy. Nos. 48/2 and 347/1 are concerned, the Court has to see the material placed before the Tribunal for the purpose of acceptance or otherwise of the order of the Land Tribunal. 9. From the material on record it is seen that petitioner has provided the deed of surrender dated 21-2-1986, Annexure-K A reading of the said document would show that the original mulagenidar had surrendered in terms of this document. This document is not denied. In fact written arguments were also provided before the authorities. Unfortunately, without properly considering the said document, the Land Tribunal has chosen to grant the occupancy rights in the case on hand. In these circumstances, the petitioner-Mutt is right in its submission that the grant in the case on hand requires to be set aside by this Court in the light of surrender in this case. 10. It is further seen from the material on record that evidence was recorded before the Tribunal. In the evidence of Sri Rama Shetty, he has stated in evidence that the lands in questions were provided in terms of the Chalageni rights and out of which, in 8 cents crops were raised and in the remaining 34 cents, Punja land, dry leaves were collected. In cross-examination he has expressed his ignorance with regard to several details. He has also expressed as to whether these lands were covered by Chalageni proceedings in terms of his cross-examination. The evidence of Annaji Ballal is available at page 42. He has stated that the lands in Sy. No. 347/1 were never given to the respondent by way of tenancy. In the light of this evidence, what is clear to this Court is that no tenancy as such has been granted in respect of these two lands. The evidence on record would not prove tenancy in favour of respondent in terms of the findings of the Land Tribunal. The Tribunal has also has not chosen to give any acceptable finding with regard to the tenancy rights in respect of these two lands. The evidence in the case on hand would show that there is no tenancy at all. The Tribunal has also has not chosen to give any acceptable finding with regard to the tenancy rights in respect of these two lands. The evidence in the case on hand would show that there is no tenancy at all. The Tribunal in such circumstances could not have granted any occupancy rights even in respect of two lands in Sy. Nos. 48/2 and 347/1 in terms of its order. On the facts of the case and in the light of the material and oral evidence I am convinced that the Tribunal is wrong in granting these Punja lands to the contesting respondent. 11. A Division Bench of this Court in identical circumstances, in the case of Subhakar and Others v The Land Tribunal, Karkala Taluk, Karkala and Others1, has ruled in para 5 as under: "In view of the above stated contentions, the only point to be considered is whether Punja lands in Dakshina Kannada District are agricultural lands or not. In this case, the land is described as a Punja land. This Court in Venkatesha Shet v Narayan Achari, 1975(2) Kar. L.J. 173, Justice Govinda Bhat, as he then was considered the question whether a punja land in Dakshina Kannada District is an agricultural land or not. His Lordships relying on the survey scheme in that area held that Punja lands are not agricultural lands as only thatched grass are grown in those lands naturally and such lands are not brought under cultivation and held that Punja lands are not agricultural lands. Thereafter, in C.R.P. No. 5130 of 1990, disposed of on 23-10-1990 one of the Single Judge of this Court considered the same question and agreed with the view expressed by ,Justice Govinda Bhat as he then was in the above decision and held that Punja lands are non-agricultural lands. In C. v: Gouramma v Land Tribunal, Bantwal and Others, 1980(1) Kar. L.J. 54, again the same question came up for consideration as to whether Punja lands in Dakshina Kannada District are agricultural lands or not. After elaborately considering it was held that Punja lands are not agricultural lands as only thatched grass is grown in that lands naturally. Thereafterwards, a Division Bench of this Court in W.A. No. 6222 of 1997 in which Justice Y. Bhaskar Rao was one of the Judges held that Punja lands are not agricultural lands. After elaborately considering it was held that Punja lands are not agricultural lands as only thatched grass is grown in that lands naturally. Thereafterwards, a Division Bench of this Court in W.A. No. 6222 of 1997 in which Justice Y. Bhaskar Rao was one of the Judges held that Punja lands are not agricultural lands. Thus, this Court by continuous pronouncements from 1975 till 1998 held that Punja lands in Dakshina Kannada are not agricultural lands". This judgment is squarely applicable to the facts of this case in the light of the lands being Punja lands in character. If a statutory Tribunal passes an order contrary to the material evidence on record, that order cannot but be termed as a perverse finding order as understood in law. The present order is one such order. 12. Learned Counsel for the respondent also relies on a judgment in Puttegowda v State of Karnataka and Others1. A reading of the said judgment would show that the said judgment would not be available to the respondents. The Court in that case noticed that delivery of possession by the tenant to the landlord. In the case on hand, evidence on record would show that there is no tenancy at all on the facts of this case. 13. Similarly the judgment in 2003(3) KCCR 1569 is also not applicable to the present case. That was also a case dealing with Punja lands. In land reforms matter each case has to be decided on the merits of that case. There can be no uniform application of case-law in such matters. 14. This Court also has to notice that the mutt was fair enough not to contest the case in respect of various pieces of land. The Mutt has admitted tenancy in favour of the contesting tenant in respect of other lands. In fact no attempt was made by the Mutt at any point of time to deny tenancy in respect of those lands. Justice has been done to the contesting tenant in the light of grant of various lands by the Tribunal. 15. This Court also has to add a word of caution. The land Tribunal has to be careful in considering the claim made against the Mutt and 'other religious institutions in the light of the land reform laws. Justice has been done to the contesting tenant in the light of grant of various lands by the Tribunal. 15. This Court also has to add a word of caution. The land Tribunal has to be careful in considering the claim made against the Mutt and 'other religious institutions in the light of the land reform laws. Bona fide tiller has to be granted occupancy rights in the light of the laudable object of the Land Reforms Act. But at the same time land reforms laws cannot be made use of by a litigant without there being any material to show tenancy in terms of the laws governing such tenancy rights resulting in the Mutt being deprived of its lard provided by devotees of the Mutt. Insofar as the Mutt/temple lands are concerned, the Tribunal has to be extremely careful in seeing as to whether the tenants were bona fide tenants and that the tenancy is created by those persons who have right to do so in the matter as otherwise, lands granted by the devotees or the believers of that Mutt or temple are lost. 16. Petition is allowed. The impugned order is set aside. No costs.