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Karnataka High Court · body

2011 DIGILAW 915 (KAR)

Renuka v. Siddavva

2011-09-15

A.N.VENUGOPALA GOWDA, N.K.PATIL

body2011
Judgment :- controversy consists of claims for occupancy rights made by late Ramappa S/o. Gurappa Allapura (hereinafter called ‘the tenant’) under Section 48 – A of the Karnataka Land Reforms Act, 1961 (in short ‘the Act’) and an application for resumption under S.15 of the Act made by one late Subhash, S/o. Shankar Gouda Patil, in respect of lands bearing R.S.Nos. 50/1 measuring 7 acres 25 guntas, and 26/1A measuring 5 acres 25 guntas, situated at Adaragunchi Village, Hubli Taluk. 2. Thematerial facts to the extent of those not in controversy are the following: The lands in question belonged to Shankar Gouda Patil. The tenant made an application on 30.05.1974 in Form No. 7 seeking registration of occupancy rights by stating that he has been cultivating the lands as a tenant for the past 18 – 20 years. After notice to the landlord, the Land Tribunal by an order 19.09.1975 ordered registration of occupancy rights in favour of the tenant, who deposited occupancy price of Rs. 7,160/- on 07.10.1977, whereafter Form No. was issued on 21.02.1977. Shankar Gouda Patil passed away on 15.03.1976. Subha, S/o. Shankar Gouda Patil questioned the said order in W.P. 1556 / 1983, inter alia contending that, the lands in question fell to his share under a family partition in the year 1960 and he joined military service in the year 1963 and had mortgaged the lands for two years to Ramappa and after the period of mortgage, redeemed the lands by paying the money and thereafter cultivated the same with the help of family members and servants. During the course of hearing, the writ petitioner was directed to produce the mortgage deed, if any, in favour of Ramappa. It was submitted that, the writ petitioner is unable to produce the mortgage deed. However, it was contended that, the Tribunal had not conducted the proceedings as per Rule 17 of the Karnataka Land Reforms Rules (for short ‘the Rules’). Finding that, oath had not been administrated before recording the statement of Shankar Gouda Patil and that Subhas being in military service and the protection available under Sections 5 & 15 of the Act, the writ petition was allowed and the said order was quashed and the matter was remitted to the Land Tribunal for fresh disposal of Form No. 7 filed by the tenant after issue of notice to Subhas. Subhasmade an application dated 21. 05. Subhasmade an application dated 21. 05. 1992 before the Land Tribunal under the Section 15 of the Act for eviction of the tenant and delivery of possession of the lands in question, stating that, he retired from the Army as JCO on 31.07.1991 and that he issued a notice as per sub – Section (3) of Section 15 of the Act to the tenant on 21.05.1992 to deliver possession of the lands for his personal cultivation and the tenant has failed to deliver. The Land Tribunal referred the said application to the Tahsildar, Hubli, for consideration. The tenant filed statement of objections on 31.12.1996 and denied the receipt of statutory notice under Section 15 of the Act from Subhas. The Tahsildar upon consideration of the record, finding that there is no proof of service of statutory notice and that the applicant Subhas was not the only owner and that there is no pleading as to creation and cotinuation of tenancy, passed an order on 13.03.2000, rejecting the application for eviction of the tenant and delivery of possession of the lands. Questioning the said order of rejection passed by the Tahsildar, Subhas filed an appeal under Section 118 (2B) of the Act before the Asst. Commissioner. Ramappa passed away on 17.3.1998. his legal representatives were made the respondents. The said Authority, by an order dated 22.10.2001, reversed the order impugned in the appeal and allowed the resumption application filed by Subhas. Legal representatives of the tenant filed W.P. 26247/ 2002 questioning the said order passed by the Asst. Commissioner. By an order dated 05.07 202, taking notice of the order of resumption passed by the Asst. Commissioner, the Land Tribunal rejected Form No.7 filed by tenant, which was questioned by the legal representatives of the tenant in W.P.11415/2003. Both the writ petitions were consolidated for hearing Subhas Patil – Respondent No. 3 in the writ petitions having died, Smt. Parwatewwa was brought on record as his legal representative. Sri Gangana Gouda and Smt. Renuka, made an application for impleading disputing the status of Smt. Parwatewwa as wife of deceased Subhas Patil. Learned Single Judge having perused the record in the light of rival contentions, finding that the Asst. Commissioner is not justified in holding that there is service of mandatory notice by the soldier on the tenant within the prescribed period, set – aside the order passed by the Asst. Commissioner. Learned Single Judge having perused the record in the light of rival contentions, finding that the Asst. Commissioner is not justified in holding that there is service of mandatory notice by the soldier on the tenant within the prescribed period, set – aside the order passed by the Asst. Commissioner. By observing that, unless tenancy is available, the resumption of possession under Section 15 of the Act would not arise, the tenancy having been admitted with the making of an application under Section 15 of the Act and the application filed for resumption having not been preceded with the service of a notice under sub – Section (2) of Section 15 of the Act within the prescribed period under clause (i) of sub – Section (3) of Section 15 of the Act, and remand of the matter to the Land Tribunal would be a waste of time, money and energy to all concerned, by noticing that the proceedings have been pending for more than three decades, the order passed by the Land Tribunal was set – aside and it was declared that, in the peculiar facts of the case, the legal representatives of the tenant are entitled to grant of occupancy rights. The Land Tribunal was directed to issue Form No.10 to the writ petitioners. The said order has since been reported in 2006 (5) Kar. L.J.353. 3. According to Sri Padmanabha Mahale, learned Senior Counsel and Sri M.V. Hiremath, learned counsel appearing for the appellants – legal representatives of the soldier, the resumption of land by the soldier being permissible under Section 15 of the Act, the soldier bonafide requiring the land to cultivate personally, having retired from Army on 31.07.1991, issued a notice to the tenant on 21.05.1992, requiring the tenant to deliver possession of the land. Learned counsel firstly contended that, Section 15 of the Act having not specified any prescribed form of notice or mode of effectuation of notice, the soldier having retired on 31.07.1991 and the notice having been issued on 21.05.1992, the presumption under Section 114 of Evidence Act ought to have been drawn, since the notice was posted and the fact likely to happen is that the same must have reached the addressee and hence, the Asst. Commissioner is justified in granting the relief to the soldier under sub – Section (4) of Section 15 of the Act. Commissioner is justified in granting the relief to the soldier under sub – Section (4) of Section 15 of the Act. Learned counsel submitted that, the contrary finding recorded by the learned Single Judge is perverse and calls for interference, secondly, the direction issued by the learned Single not call for interference. Judge to accept Form No. 7 and issue Form No. 10 is in excess of jurisdiction and interference in the matter is called for. 4. Sri R.L. Patil & Sri H.N.M. Prasad, learned counsel appearing for the legal representatives of the tenant/contesting respondents, on the other hand submitted that, the statutory notice contemplated under Section 15 of the Act was not served and hence the learned Single Judge is justified in passing the impugned order. Learned counsel submitted that, there being no dispute of the lands having been leased to the tenant prior to 01.03.1974, the resumption was sought long after the lands vested in the State and there being no disputed questions to be enquired into and decided by the Land Tribunal, learned Single Judge is justified in directing the acceptance of Form No. 7 and to issue Form No. 10 to the legal representatives of the deceased tenant, by the Land Tribunal. Learned counsel submitted that, in the facts and circumstances of the case, the order passed by the learned Single Judge being justified, does not call for interference. 5. In viewof the rival contentions and the record of the case, the points for determination are : 1.) Whether the soldier issued a notice to the tenant to deliver the lands within one year period from the date on which he retire from the Army ? 2.) Whether the order passed by the learned Single Judge directing acceptance of Form No. 7 and to issue Form No. 10 to the legal representatives of the deceased tenant is justified ? 6. Since the controversy centers around Sections 5, 15 & 44 of the Act, the relevant portion of the provisions are extracted and reproduced hereunder: “5.) Prohibition of leases, etc.- (1) Save as provided in this Act, after the date of commencement of the Amendment Act, no tenancy shall be created or continued in respect of any land nor shall any land be leased for any period whatsoever. (2) Nothing in sub – section (1) shall apply to – (a) a tenancy created or continued by a soldier or seaman if such tenancy is created or continued while he is serving as a soldier or a seaman or within three months before he became a soldier or a seaman. (c) xxxxx (3) Every lease created under sub – section (2) shall be in writing. 15.) Resumption of land by soldier or seaman - (1) A soldier or a seaman who has created or continued a lease in accordance with the provisions of Section 5 shall, subject to the provisions of this Act, be entitled to resume land to the extent of the ceiling whether his tenant is a protected tenant or not. (2) The soldier or a seaman shall, if he bonafide requires the land to cultivate personally, issue a notice to the tenant requiring him to deliver possession of the land within the period specified in the notice, which shall not be less than the prescribed period. (3) Thenotice referred to in sub – section (2) shall be given (i) in the case of the soldier in service in the Armed Forces of the Union, at any time not later than one year from the date on which he is released from the Armed Forces or is sent to the reserve ; (ii) in the case of the father, mother, spouse, child or grandchild of a soldier, within one year from the date of the death of such soldier; and (iii) in the case of a seaman, within one year from the date on which he ceases to be a seaman. (4) If the tenant falls to deliver possession of the land within the period specified in the notice, the soldier or the seaman may make an application to the Tahsildar within whose jurisdiction the greater part of the land is situated, furnishing the prescribed particulars for eviction of the tenant and delivery of possession of the land. (4) If the tenant falls to deliver possession of the land within the period specified in the notice, the soldier or the seaman may make an application to the Tahsildar within whose jurisdiction the greater part of the land is situated, furnishing the prescribed particulars for eviction of the tenant and delivery of possession of the land. (5) On receipt of such application, the Tahsildar shall issue a notice to the tenant calling upon him to deliver possession of the land to the soldier or the seaman within such time as may be specified in the notice, which shall not be less than the prescribed period and if the tenant fails to comply, the Tahsildar may summarily evict the tenant and deliver possession of the land to the soldier or the seaman. (6) Where the Tahsildar, on application by the tenant or otherwise and such enquiry as may be prescribed, is satisfied that a notice as required by sub – section (2) is not issued, he shall, by notification, declare that with effect from such date as may be specified in the notification the land leased shall stand transferred to and vest in the State Government free from all encumbrances. The Tahsildar may take possession of the land in the prescribed manner and the tenant shall be entitled to be registered as an occupant thereof. The provisions of Section 45 shall mutatis mutandis apply in this behalf. 44.) Vesting of land in the State Government - (1) All lands held by or in the possession of tenants (including tenants against whom a decree or order for eviction or a certificate for resumption is made or issued) immediately prior to the date of commencement of the Amendment Act, other than lands held by them under leases permitted under Section 5, shall, with effect on and from the said date, stand transferred to and vest in the State Government. 7. Section 5 (1) prohibits creation or continuance of any tenancy after 01.03.1974, the date on which the Amending Act 1 of 1974 came into force. Section 5 (2) is in the nature of exception to Section 5 (1). The soldier or seaman can create or continue the tenancy. 8. 7. Section 5 (1) prohibits creation or continuance of any tenancy after 01.03.1974, the date on which the Amending Act 1 of 1974 came into force. Section 5 (2) is in the nature of exception to Section 5 (1). The soldier or seaman can create or continue the tenancy. 8. Section 15 enables a soldier or a seaman, the right to resume the lands from the tenant irrespective of the nature of tenancy, if he bonafide requires the land to cultivate personally, he shall issue a notice, which shall not be less than the prescribed period – 6 months as required under Rule 4 of the Rules, calling upon the tenant to surrender the land. The notice could be given at any time not later than one year from the date on which the soldier is discharged from the Armed Forces or is sent to the reserve. If the tenant fails to deliver possession of the land, the soldier or seaman may make an application to the Tahsildar, furnishing the prescribed particulars for eviction of the tenant and for delivery of possession of the land. Thereafter, the Tahsildar shall issue a notice to the tenant calling upon him to deliver possession of the land to the soldier or seaman within such time as may be specified in the notice, which shall not be less than the prescribed period and if the tenant fails to comply with the demand even thereafter, the Tahsildar may summarily evict the tenant and put the soldier or seaman in possession of the land. Before the intervention of the Tahsildar is sought in the matter, it is mandatory that the soldier or seaman issues a notice to the tenant to deliver possession within the specified period and such notice shall have to be issued at any time not later than one year from the date on which the soldier is released from the Armed forces or is sent to the reserve. 9. Rule 5 is with regard to particulars to be furnished to the Tahsildar, the manner of enquiry and taking possession of the land by the Tahsildar. Sub – rule (1) is with regard to particulars to be furnished in an application to be made to the Tahsildar under sub – section (4) of Section 15 of the Act by a soldier. Sub – rule (1) is with regard to particulars to be furnished in an application to be made to the Tahsildar under sub – section (4) of Section 15 of the Act by a soldier. Sub – rule (2) enables the Tahsildar to call upon the soldier as to the issue of notice, to produce evidence in support of the same. Sub – rule (3) enables the Tahsildar to decide whether a notice as required under sub – section (2) of Section 15 of the Act has not been issued. 10. The Tahsildar, acting under the said provisions, noticing that Subhas has failed to produce evidence in support of issue of statutory notice, passed the order of rejection of the application for resumption on 13.03.2000. In appeal, the Asst. Commissioner without examining the record in the light of the relevant provisions, reversed the order passed by the Tahsildar. Learned Single Judge having examined the record and finding that Subhas has failed to produce evidence in support of issue of statutory notice, set – aside the arbitrary and illegal order passed in appeal by the Asst. Commissioner. 11. Even according to the appellants, Subhas – soldier, issued notice to the tenant – Ramappa, by certificate of posting. Rule 43 is with regard to the manner of service of notice or order, under the Act or the Rules. Any notice or order issued or made under the Act or the Rules, shall be served on the person concerned in the manner stipulated therein. Clause (d) is with regard to service on individuals. The notice can be delivered or tendered to the person concerned or to the adult member of the family or by sending the notice to the person concerned by registered post acknowledgement due. Indisputedly, the soldier – Subhas, did not send the statutory notice in the manner stipulated under Rule 43 (d) (iii). 12. The tenant in the statement of objections filed before the Tahsildar, denied the receipt of notice under Section 15 of the Act from the landlord. Rule 43 stipulates the mode and manner of service. Indisputedly, the soldier – Subhas, did not send the statutory notice in the manner stipulated under Rule 43 (d) (iii). 12. The tenant in the statement of objections filed before the Tahsildar, denied the receipt of notice under Section 15 of the Act from the landlord. Rule 43 stipulates the mode and manner of service. Section 27 of the Karnataka General Clauses Act stipulates that, any document to be served by post, whether the expression “serve “ or either of the expressions “ give “ or “ send “ or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, prepaying and posting by registered post, a letter containing the document. According to the learned counsel appearing for the appellants, Section 15 of the Act having not specified the mode of service, the soldier was justified in sending the notice under certificate of posting and presumption as to service needs to be drawn under illustration (f) of section 114 of Evidence Act and that the learned Single Judge is not justified in not noticing Section 114 (f) of the Evidence Act and hence the impugned order is erroneous. We find it difficult to accept the contention, in the face of statement of objections filed by the tenant before the Tahsildar, denying the receipt of statutory notice under Section 15 of the Act, from the soldier. 13. First and foremost, the Rule itself provides for manner of service of notice. When the statue provides for a thing to be done in a particular manner, such thing should be done in the manner provided and not otherwise. 14. In GADAKK YASHWANTRAO KANKARRAO VS BALASAHEB VIKHE PATIL, reported at (1994) 1 SCC 682 , Apex court has held that, “a certificate of posting is easy to procure and does not inspire confidence”. 15. In SHIV KUMAR VS. STATE OF HARYANA, reported in 1994 (4) SCC 445 , wherein the workmen disputed the sending of notice by certificate of posting by the Management, it has been held as follows: We have not felt safe to decide the controversy at hand on the basis of the certificates produced before us, as it is not difficult to get such postal seals at any point of time. To assure our mind that the notices had really been sent out to the workmen concerned, we perused the application which had been filed by the management seeking permission. We did so because Rule 76 – A (2) requires that the application shall be made in triplicate and copies of the same shall be served by the employer on the workmen concerned and “proof to that effect shall also be submitted by the employer along with the application “. But the application (Annexure A) has not mentioned anything about “proof” of service to the workmen concerned. The statement in the counter – affidavit that proof of service had been submitted to the specified authority has not satisfied our mind in this regard”. 16. The parties having got into litigation with the filing of W. P. 1556/1983, questioning an order granting occupancy rights by the Land Tribunal to the tenant, the relationship between the parties having already embittered, the fact of issue of notice was rightly examined by the Tahsildar, since the certificate of posting might lead to a presumption that, if the letter was addressed and was posted, that it in due course reached the addressee is only a permissible and not an inevitable presumption. Section 114 of the Evidence Act does not compel the Court to draw a presumption. The presumption may or may not be drawn. On the facts and circumstances of a case, the Court may refuse to draw the presumption. The presumption may be drawn initially, but on a consideration of the evidence, the Court may hold that the presumption rebutted and may arrive at a conclusion that no letter was received by the addressee or that no letter was ever dispatched as claimed, as held in the case of L. M. S. UMMU SALEEMA VS. B.B. GUJARAL, reported in 1981 ( 3 ) SCC 317. 17. In STATE OF MAHARASHTRA VS. RASHID B. MULANI, reported in 2006 (1) SCC 407 , it has been held as follows: “17.) A certificate of posting obtained by a sender is not comparable to a receipt for sending a communication by registered post. When a letter is sent by registered post, a receipt with serial number is issued and a record is maintained by there post office. When a letter is sent by registered post, a receipt with serial number is issued and a record is maintained by there post office. But when a mere certificate of posting is sought, no record is maintained by the post office either about the receipt of the letter or the certificate issued. The ease with which such certificates can be procured by affixing antedated seal with the connivance of any employee of the post office is a matter of concern. The Department of posts may have to evolve some procedure whereby a record in regard to the issuance of certificates is regularly maintained showing a serial number, date, sender’s name and addressee’s name to avoid misuse. In the absence of such a record, a certificate of posting may be of very little assistance, where the dispatch of such communications is disputed or denied as in this case. Be that as it may”. 18. Thus, it will depend upon facts of each case, whether the presumption of service of a notice sent under certificate of posting should be drawn or not. If the facts of a case so justified, a presumption can be drawn in the case of notice sent under certificate of posting. The Tahsildar having examined the record found that the notice claimed by the soldier as having been sent by certificate of posting was not issued. The Asst. Commissioner has not examined the record and without assigning any cogent reason, reversed the finding recorded by the Tahsildar, which is arbitrary and illegal. 19. We have perused the record. The notice alleged to have been issued by certificate of posting is suspect. In the background of the dispute between the parties to the property and the Rules noticed supra, we do not see any reason why Subhas should not have sent the notice to the tenant through registered post. On the totality of the facts and circumstances of the case, we do not think a presumption under Section 114 of the Evidence Act would be safe to draw in favour of the soldier and to hold that, the requisite notice was issued to the tenant by the soldier. In the circumstances, the learned Single Judge is justified in allowing the writ petition and in setting aside the order passed in appeal and in restoring the order passed by the Tahsildar. Re – Point No.2 : 20. In the circumstances, the learned Single Judge is justified in allowing the writ petition and in setting aside the order passed in appeal and in restoring the order passed by the Tahsildar. Re – Point No.2 : 20. Learned Single Judge noticing that there is no quarrel with regard to tenancy and that the filing of application under Section 15 of the Act would not arise unless there is a tenancy of the land, noticing that the matter has been pending for more than three decades and remand would be waste of time, money and energy to all concerned, directed the acceptance of Form No.7 and issue of Form No. 10 by the Tribunal. Learned Single Judge has failed to notice that the order dated 09.06.2006 passed in W.P. 1556 / 1983 has attained finality. Therein, the Tribunal was directed to consider the matter afresh. 21. No doubt, an application under Section 15 of the Act was filed by Mr. Subhas, after the passing of the order dated 09.06.2006 in W.P.1556 / 1983. However, sub – section (6) of section 15 of the Act confers jurisdiction upon the Tahsildar to hold enquiry into the matter and if he is satisfied that a notice as required under sub – section (2) has not been issued, he shall, by notification, declare that with effect from such date as may be specified in the notification, the land leased shall stand transferred to and vest in the State Government free from all encumbrances. The vesting of land belonging to a soldier shall take place only after the issue of a notification by the Tahsildar and not otherwise. 22. In KOGGU @ NARAYANA SHETTY VS. 9TH LAND TRIBUNAL, reported in ILR 1992 KAR 2717, there was no dispute that the lands in question were under the cultivation of the appellant as a tenant and the only fact in dispute was as to creation or continuation of the tenancy before 01.03.1974, by the 3rd respondent, who was a soldier. The question considered was, whether the disputed question can be decided by the Tahsildar? By noticing Section 15 of the Act, it was held that, the Tahsildar is empowered under Section 15 of the Act to determine the question, i.e. whether the tenancy was either created or continued by the applicant under Section 15 of the Act. 23. The question considered was, whether the disputed question can be decided by the Tahsildar? By noticing Section 15 of the Act, it was held that, the Tahsildar is empowered under Section 15 of the Act to determine the question, i.e. whether the tenancy was either created or continued by the applicant under Section 15 of the Act. 23. In the instant case, after the order rejecting the resumption application of the soldier was passed on 13.03.2000 by the Tahsildar, notification contemplated under Section 15 (6) of the Act was not issued. It is only by issue of notification, the Tahsildar can declare that the land leased shall stand transferred to and vest in the State Government free from all encumbrances and the Tahsildar may take possession of the land in the prescribed manner and the tenant shall be entitled to be registered as an occupant thereof and that the provisions of Section 45 shall mutatis mutandis apply. Learned Single Judge has not noticed the specific provision under Section 15 (6) of the Act. Hence, the direction issued to the Land Tribunal to accept Form No. 7 and issue Form No. 10, cannot be upheld. In the result, writ appeals are allowed in part and we order as follows : W.P. Nos. 26247 / 2002 and 11415 / 2003 stand allowed and the orders impugned therein stand quashed. The Tahsildar, Hubli Taluk, is directed to issue a notification under sub – section (6) Section 15 of the Act within a period of three weeks. The Land Tribunal, Hubli, is directed to proceed further in the matter keeping in view the order passed by the Tahsildar on 13.03.2000 and the consequential notification to be issued and regulate the matter keeping in view the observations made supra and in accordance with law. The order passed by the learned Single Judge. Impugned in these appeals, stand modified in terms hereof. In the facts and circumstances of the case, parties are directed to bear their respective costs.