Writ Petition No. 31400 of 2014 · The High Court
Case Details
1 R IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31ST DAY OF JANUARY, 2025 BEFORE THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM WRIT PETITION NO.31400 OF 2014 (LR) BETWEEN: UMASHASHI SINCE DECEASED BY LRS. 1. SRI. BHOJA AMIN S/O LATE PIJINA PUJARI AGED ABOUT 81 YEARS 2. SRI. ASHOK KUMAR S/O SRI. BHOJA AMIN AGED ABOUT 56 YEARS 3. SRI. AMRITH KUMAR S/O SRI. BHOJA AMIN AGED ABOUT 55 YEARS 4. SMT. REKHS PRATHISH D/O SRI. BHOJA AMIN AGED ABOUT 51 YEARS ALL ARE RESIDING AT NO.76 BADAGUBETTU VILLAGE UDUPI TALUK UDIPI DISTRICT. (BY SRI. S.M. CHANDRASHEKAR, SENIOR ADVOCATE FOR SRI. SIDDHARTH SUMAN, ADVOCATE) ...PETITIONERS 2 AND: 1. M/S. MADHAVA BUILDERS (P) LTD
Legal Reasoning
UDUPI BY ITS DIRECTOR SMT. VIJAYALAKSHMI S HEGDE UDUPI. 2. THE ASSISTANT COMMISSIONER AND SPECIAL OFFICER UNDER SEC. 77-A OF THE KLR ACT UDUPI. 3. SODE MUTT UDUPI, BY ITS MANAGER UDUPI. (BY SMT. WAHEEDA, AGA FOR R2; SRI. KEERTHI HEGDE, ADVOCATE FOR R1; R3 SERVED) …RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO SETT ASIDE THE ORDER DATED 29.03.2014 PASSED BY THE HON'BLE KARNATAKA APPELLATE TRIBUNAL IN APPEAL NO.894/2006 (I.E. ANNEXURE-A) AS ARBITRARY, ILLEGAL, UNJUST AND UNSEQUENTIALLY DISMISS THE APPEAL NO.894/2006 FILED BY THE 1ST RESPONDENT. THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 29.01.2025, THIS DAY ORDER WAS PRONOUNCED THEREIN, AS UNDER: CORAM: HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM 3 C.A.V. ORDER Captioned petition is filed by the legal heirs of one M.P. Rao assailing the remand order passed by the Karnataka Appellate Tribunal(KAT) to Assistant Commissioner to hold fresh enquiry under Section 77A of Karnataka Land Reforms Act, 1961(for short "Act"). 2. Facts leading to the case are as under: The subject-matter of the petition land is 26 cents in Survey No.54/2 of No.76, Badagubettu village, Udupi Taluk originally owned by Aroorlakshminarayana Rao of Udupi. Petitioners asserts that their father took the petition land by paying monthly rental of Rs.45/- and he has planted about 10 to 12 coconut plants. Petitioner asserts that he has inherited tenancy rights. After coming into force of the Land Reforms Act, 1977, the application tendered by the original petitioner Umashashi was considered by respondent No.2/Assistant Commissioner and Assistant Commissioner 4 after due enquiry has granted occupancy rights in respect of petition land. 3. Respondent No.1 assailed the order of respondent No.2/Assistant Commissioner before the KAT in Appeal No. 894/2006. The KAT has allowed the appeal and the matter is now remitted back to respondent No.2/Assistant Commissioner to reconsider the claim made under Section 77A of the Act. 4. Learned Senior Counsel Sri.S.M. Chandrashekar appearing on behalf of the counsel for petitioners reiterating the grounds urged in the petition has questioned the very locus of respondent No.1 in questioning petitioners' tenancy rights over the land in question. He would further point out that respondent No.3 being the original landlord has not questioned the order of grant made by respondent No.2/Assistant Commissioner while allowing the application filed in Form No.7A. Citing Section 4 of the Act, learned 5 Senior Counsel would point out that petitioner has to be considered as deemed tenant and therefore, contends that the remand order at the instance of the purchaser is bad in law and therefore, warrants indulgence at the hands of this Court. He has also placed reliance on the judgment rendered by the civil Court in O.S.No.123/2000 and O.S.127/2000 against respondent No.1. Citing this, he contends that the petitioners' possession is substantiated. Consequently, the suit filed by original petitioner Umashashi in O.S.No.123/2000 is decreed and the counter suit filed by respondent No.1 in O.S.No.127/2000 is dismissed. 5. Heard the learned Senior Counsel appearing for the learned counsel for the petitioner, learned AGA appearing for respondent No.2. There is no representation for counsel for respondent No.1 though the matter was adjourned on two occasions. 6 6. By way of Section 77A of the Act, the legislature has sought to address specific circumstances by introducing the aforementioned provision through the amendment of Act 23 of 1988. This provision enables an individual, who is a lawful tenant as of the specified date, to seek the grant of lands in certain situations. For the applicant to avail themselves of the benefits under this provision, three critical conditions must be established through an application in Form No. 7A. Firstly, the applicant must demonstrate that, as on the appointed date, i.e., 1st March 1974, they were in actual possession and cultivation of the land, which should not exceed one unit. Secondly, it must be substantiated that the applicant was entitled to be registered as an occupant under Section 45 of the Act but failed to apply for such registration concerning the petitioned land. Lastly, the applicant is required to establish that they continued to be in uninterrupted actual possession and cultivation of the petitioned land from the appointed 7 date until the date of the amendment through Act 23 of 1998, i.e., 1st November 1998. These three contingencies form the core prerequisites for considering an application under Section 77A of the Act, ensuring the applicant’s eligibility is firmly rooted in statutory compliance. 7. Upon examining the order passed by the Assistant Commissioner allowing the application filed in Form No. 7A, it becomes evident that the said order is lacking in detail and precision. The brevity of the order undermines its clarity and fails to provide a comprehensive explanation of the reasoning behind the decision. To ensure transparency and accountability, it is crucial to delve into the entire content of the order, which is reproduced verbatim below for thorough examination: "ಅ(cid:2)(cid:3)(cid:4)ಾರರು ಉಡು(cid:10) (cid:11)ಾಲೂಕು 76(cid:15)ೇ ಬಡಗ(cid:20)ೆಟು(cid:22) (cid:23)ಾ(cid:24)ಮದ ಸ.ನಂಬ(cid:24): 54/2 ರ(cid:30)(cid:31) 26 ೆಂ!" #$%ಾ#&ಯ (cid:20)ಾ§ÄÛ ನಮೂ(cid:15)ೆ 7ಎ ಅ(cid:2)(cid:3)ಯ(cid:30)(cid:31) )ಾ*#ರುವಂ(cid:11)ೆ ಅ,-ೋಗದ ಹಕು/ )ೇ0 ಕ(cid:15)ಾ(cid:3)ಟಕ ಭೂಸು2ಾರ3ಾ (4ದು5ಪ7) ಅ,8ಯಮ 45 ರಂ(cid:11)ೆ ಅ,-ೋಗ(cid:4)ಾರರ(cid:15)ಾ9: (cid:15)ೋಂ(cid:4)ಾ;ಸ(cid:20)ೇ)ೆಂದು 8 ಭೂಸು2ಾರ3ಾ )ಾ;(cid:4)ೆ ಕಲಂ 77ಎ ರ <ೕ%ೆ(cid:23)ೆ ನಮೂ(cid:15)ೆ 7ಎ ರ(cid:30)(cid:31) ಅ(cid:2)(cid:3)ಯನು9 =(cid:15)ಾಂಕ 05.10.1998 ರಂದು ಸ(cid:30)(cid:31)#ರು(cid:11)ಾ&%ೆ. (cid:23)ಾ(cid:24)ಮ 76(cid:15)ೇ ಬಡಗ(cid:20)ೆಟು(cid:22) ಸ>ೆ(cid:3) ನಂಬ(cid:24) 54/2 ?#&ೕtð 0.26 2 JPÀgÉ ಈ ಬ(cid:23)ೆA )ಾನೂ8ಗನು ಾರ>ಾ: B(cid:11)ಾಸC&ಯುಳEವF(cid:23)ೆ 4ಳGವ0)ೆ 8ೕ7 )ೊಟು(cid:22) Kೇ0)ೆಗಳನು9 ಬBರಂಗ ಮತು& >ೈಯC&ಕ (cid:15)ೋJೕಸುಗಳನು9 ಸ)ಾರಣ>ಾ: ?ವFಸಲು ಮತು& ಈ ಬ(cid:23)ೆA (cid:4)ಾಖNೆಗಳನು9 Kಾಜರು ¥Àr¸À®Ä ¢£ÁAPÀ 24.08.2005, 14.09.2005, 04.01.2006 ªÀÄvÀÄÛ 25.01.2006 gÀAzÀÄ ………..)ೊಟು(cid:22) ಪ(cid:24)ಕರಣವನು9 ಆ(cid:4)ೇಶ)ೆ/ ಇಡNಾಯು&. ಅ(cid:2)(cid:3)(cid:4)ಾರರು 36 ವಷ(cid:3)ಗ0ಂದ ಈ ಸ$ಳವನು9 ಅನುಭ?#)ೊಂಡು ಬರು4&ದು5, ಆU.#.#. ಮ(cid:15)ೆ - 1, (cid:20)ಾ? - 1, ಸುVಾರು 30ವಷ(cid:3) Wಾ(cid:24)ಯದ 15 (cid:11)ೆಂ:ನಮರ, 4 ವಷ(cid:3) Wಾ(cid:24)ಯದ 6 (cid:11)ೆಂ:ನಮರ Kಾಗೂ ಇತರ ಹ*Xನ ಮರಗಳನು9 Kೊಂ=ದು5, ಒಂದು ಬ=ಯ(cid:30)(cid:31) Wಾ(cid:23)ಾರ ಮತು& ಇತರ 3 ಕZೆಗಳ(cid:30)(cid:31) ಮುಳGE(cid:20)ೇ(cid:30) ಇರುವ[(cid:4)ಾ: ತ8\ಾ ವರ=;ಂದ 40ದುಬರುತ&(cid:4)ೆ. ನಗರಸ-ಾ ]ೇತ(cid:24)ದ (cid:20)ೈಲೂರು 30(cid:15)ೇ >ಾ7(cid:3)ನ ಮ(cid:15)ೆ ನಂಬ(cid:24): 5-2-90 ^ ಉVಾ ಶC&ಶC&ಶC&ಶC& ಇವರ KೆಸF(cid:23)ೆ ನಮೂದು ಇರುತ&(cid:4)ೆ. ಈ <ೕ(cid:30)ನ ಅಂಶಗಳನು9 ಪF_ೕ(cid:30)ಸNಾ:, ಅ(cid:2)(cid:3)(cid:4)ಾರರು 1974 ಮತು& ಅದರ 8ಕಟಪ‘ವ(cid:3)ದ(cid:30)(cid:31) ¸À.£ÀA§æ ಜaೕ8ನ(cid:30)(cid:31) : 54/2 ಅನುಭವದ(cid:30)(cid:31)ರುವ[ದು ಕಂಡು ಬರುವ[ದFಂದ ಈ )ೆಳ:ನಂ(cid:11)ೆ ಆ(cid:4)ೇ_#(cid:4)ೆ. gÀ°è 0.26 JPÉæ 9 ಆ(cid:4)ೇಶಆ(cid:4)ೇಶಆ(cid:4)ೇಶಆ(cid:4)ೇಶ ಈ <ೕಲ/ಂಡ ಅಂಶಗ0ಂ(cid:4)ಾ: ಅ(cid:2)(cid:3)(cid:4)ಾರbಾದ ಉVಾ ಶ_ ಇವರು ಕ(cid:15)ಾ(cid:3)ಟಕ ಭೂಸು2ಾರ3ಾ (4ದು5ಪ7) ಅ,8ಯಮ 1998ರ 8ಯಮ 77ಎ ಯನcಯ ಸ(cid:30)(cid:31)#ದ ನಮೂ(cid:15)ೆ 7ಎ ಅ(cid:2)(cid:3)ಯನು9 ಪ[ರಸ/F#, 76 ಬಡಗ(cid:20)ೆಟು(cid:22) (cid:23)ಾ(cid:24)ಮದ ಸ.ನಂಬ(cid:24): 54/2 ರ(cid:30)(cid:31) 0.26 ಎ)ೆ(cid:24) ಜaೕನುಗ0(cid:23)ೆ ಅ,-ೋಗ(cid:4)ಾರbೆಂದು dೂೕe# ಆ(cid:4)ೇ_#(cid:4)ೆ. ಈ ಆ(cid:4)ೇಶವನು9 ಉಕ&Nೇಖನ 8ೕ7, ಮು=(cid:24)#, ಪFಷ/F#, ಈ =ನ =(cid:15)ಾಂಕ ಬBರಂಗ>ಾ: 01.02.2006 (cid:15)ಾfgಾಲಯದ(cid:30)(cid:31) ರಂದು (cid:11)ೆ%ೆದ dೂೕeಸNಾ;ತು. «±ÉõÁ¢üPÁj ಭೂಸು2ಾರ3ಾ ಸhಮ Wಾ(cid:24),)ಾರ ಉಡು(cid:10)." 8. This Court also deems it fit to refer to the definition of "to cultivate" and explanation to the said definition. Section 2(10) of the Act, along with explanation reads as under: " To Cultivate" with its grammatical variations and cognate expressions means to till or husband the land for the purpose of raising or improving agricultural produce whether by manual labour or by means of cattle or machinery, or to carry on any agricultural operation thereon; and the expression "uncultivated" shall be construed correspondingly; 10 Explanation:- A person who takes up a contract to cut grass, or to gather the fruits or other produce of any land, shall not on that account only be deemed to cultivate such land." 9. The petitioners have failed to produce any record of rights or substantial documentary evidence to enable this Court to determine whether the petition land qualify as agricultural land and whether they were subjected to cultivation, as required under the Act. The term "agriculture" is commonly understood as the practice of cultivating fields for the production of food crops. Furthermore, the term "agriculturist" is specifically defined under sub-clause (3) of Section 2(A) of the Act to mean a person who personally cultivates the land. This definition underscores the necessity of actual agricultural activity for a person to qualify as an agriculturist within the meaning of the Act. Without clear and convincing evidence of such cultivation, the petitioners' claim remains unsupported. 11 10. Section 44 of the Act provides that all lands held by or in possession of tenants immediately prior to the date of commencement of the Amendment Act shall, with effect from the appointed date, stand transferred to and vest in the State Government. This statutory provision ensures that tenant-held lands are brought under the purview of the Act, provided certain conditions are fulfilled. It is, therefore, crucial to examine whether the petition land meet the criteria of being tenant-held agricultural land subjected to cultivation, as outlined in Section 44. 11. In light of the above, the primary question that arises for determination is whether the petition land was under actual cultivation, as required by law, particularly in the context of the admitted pleadings in the writ petition and the findings recorded by respondent No. 2/Assistant Commissioner while allowing the application filed in Form No. 7A. The determination of this question is central to the 12 adjudication of the matter, as cultivation is a key criterion for claiming tenancy rights under the Act. 12. The portion of the order passed by respondent No. 2/Assistant Commissioner, as culled out for review, reveals that the land in question comprises standing coconut trees. However, the Assistant Commissioner has failed to examine and record findings on the nature of the land, the extent of agricultural activity, or the definition of "cultivation" as per the Act. Additionally, the Assistant Commissioner has not considered the implications of Section 44 of the Act, which requires proof of agricultural activity for the land to vest in the State Government. This oversight raises serious questions about the sufficiency of the reasoning in the impugned order. 13. The jurisdiction of the Assistant Commissioner, as conferred under the 1998 amendment, is contingent upon the applicant substantiating that they were cultivating 13 the land as a tenant on the appointed date (1st March 1974) and continued such cultivation until 1998. The mere presence of standing coconut trees on the land, as noted by the Assistant Commissioner, does not automatically establish agricultural activity. Furthermore, there is no material evidence to demonstrate whether any portion of the petition land was subjected to active cultivation. The decree obtained by the petitioners' mother, which indicates mere possession of the land, is insufficient to support the application filed in Form No. 7A. This Court, in an unreported judgment in W.P. No. 37580/2012, has categorically held that coconut groves do not qualify as agricultural land under the statutory definition provided in Section 2(18) of the Act. The Court also emphasized that tenancy rights can only be claimed if there is clear evidence of actual agricultural activities, and without such evidence, no tenancy claim can be entertained. 14 14. In view of the foregoing, this Court holds that respondent No. 1 has the locus standi to contest these proceedings on limited grounds. Specifically, respondent No. 1 is entitled to substantiate that the petition land was not subjected to actual cultivation and, therefore, did not vest in the State Government on the appointed date. While respondent No. 1 may not have the locus to entirely admit or dispute the tenancy rights of the petitioners, the peculiar facts and circumstances of this case justify allowing respondent No. 1 to contest the proceedings on the limited ground of the absence of agricultural activity. 15. Even if the petitioners' family can substantiate the existence of a lease in their favour by the original owner of the land, the critical question that requires resolution in the present case is whether the lands were subjected to actual cultivation. The limited records and observations made by the Assistant Commissioner, which only indicate the presence of standing coconut trees, do not provide 15 sufficient evidence of cultivation. In the absence of clear and convincing proof of agricultural activity, this Court is of the considered opinion that the impugned order does not warrant interference. Consequently, the petitioners' claims cannot be upheld solely based on the evidence presented,
Decision
and the writ petition is liable to be dismissed. 16. Petitioners have failed to substantiate that the order of remand suffers from any infirmities. There is no scope for judicial review and the writ is liable to be dismissed. 17. For the foregoing reasons, the writ petition is dismissed. ALB Sd/- (SACHIN SHANKAR MAGADUM) JUDGE