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Sec. 45 Karnataka Land Reforms Act – cultivate tenant = HARSHA V. RAI Vs. STATE OF KARNATAKA & ANR THROUGH LRS published in judis.nic.in/supremecourt/filename=40860

Sec. 45 Karnataka Land Reforms Act – Cultivate tenant –  by1st of March, 1974 one must be a cultivating tenant – with out framing proper question , no case is to be determined – Hence the Apex court remanded the case on two counts

1.whether the property said to have been given on lease to  the

tenant on the appointed day, came within the definition of  land  under  the

Act.

2. whether the same was an agricultural land and was being cultivated  on

or before the appointed day by the  tenant  personally.  =

 

 According to the appellant, his mother  was  the  owner  of  the  land

measuring in all 14 cents in Survey No. 353/1 and 353/2 at  Village  Attavar

within Taluka Mangalore in the District of Dakshina Kannada.   

She  gave  on

lease the aforesaid land  to  Bhagirathi,  respondent  no.  2  herein  by  a

registered deed dated 26th of October, 1953 on an yearly rent of Rs. 42  and

the deed styled as vacant land “chalageni” was executed.  

According  to  the

appellant, the land at the time of lease  contained  five  standing  coconut

trees and respondent no. 2, hereinafter  referred  to  as  the  tenant,  was

entitled to make improvement therein to an extent of only Rs.  5,000/-.   

It

is the case of  the  appellant  that  in  terms  of  the  lease  the  tenant

constructed a residential house on the demised property and continued to  be

in occupation of       the same. =

 

 

  Section 44 of the  Act,  inter  alia,

provides that all land held by or in possession of the tenants  with  effect

from 1st of March, 1974(hereinafter to  be  referred  to  as  the  appointed

day), shall stand transferred to and vest in the State Government.   Section

45 of the Act, inter alia, provides that the land which a  tenant  has  been

cultivating personally before the date of vesting shall be  entitled  to  be

registered as an occupant.   A  tenant  entitled  to  be  registered  as  an

occupant was required to file a petition before  a  tribunal  under  Section

48A of the Act.

 

 

      Respondent no. 2, filed an application in the prescribed  form,  inter

alia, alleging that the tenancy in question is in  respect  of  agricultural

land and she was cultivating the same prior  to  1st  of  March,  1974  and,

therefore, she is entitled to be registered  as  an  occupant  in  terms  of

Section 45 of the Act.   –

 

 The dissenting Member expressed his view in the following words:

                 “………..It is learnt from the enquiry that the  petitioner’s

           husband is a truck (lorry) owner, the main source of  income  of

           the petitioner is from the income  derived  from  the  rent  and

           selling the fire-wood from the fire-wood depot.  The  petitioner

           is not an agriculturist, at  any  time.   Apart  from  this  the

           petitioner has no cultivable lands also,  because  there  are  5

           coconut trees in  the  courtyard  that  cannot  be  treated  the

           petition land as agricultural lands”

 

To satisfy the requirement of  Section  45  of  the

Act  to be registered as an occupant, the claimant has to satisfy that he  is

the tenant in respect of land which he  is  cultivating  personally  on  the

appointed day.  

  whether the property said to have been given on lease to  the

tenant on the appointed day, came within the definition of  land  under  the

Act.  

   whether the same was an agricultural land and was being cultivated  on

or before the appointed day by the  tenant  personally.   

The  tribunal  has

made spot inspection much later than the appointed  day  on  15th  December,

1987 which, in our opinion, has no relevance at all with the rights  of  the

parties.  

Here, the rights of the parties have to  be  crystallized  on  the

basis of what existed on the appointed day. 

Neither  the  Tribunal  nor  the

High Court has gone into this question in the right perspective.  

We are  of

the opinion that the impugned orders of the learned Single  Judge  and  that

of the Division Bench as also of the Tribunal deserve to be  set  aside  and

the  matter  remitted  back  to  the  tribunal  for  its  consideration   in

accordance with law.  

We make it clear that the  observation  made  in  this

order is for the purpose of its disposal and shall have no  bearing  on  the

merit of the case.

 

      In the result, we allow this appeal, set aside the  impugned  judgment

and remit the matter back to the tribunal for reconsideration in  accordance

with law bearing in mind the  observations  aforesaid.   In  the  facts  and

circumstances of the case there shall be no order as to costs.

REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.9031 OF 2013
(@SPECIAL LEAVE PETITION (C) NO. 3928 OF 2006)

HARSHA V. RAI … APPELLANT

VERSUS

STATE OF KARNATAKA & ANR. …RESPONDENTS

 

J U D G M E N T
CHANDRAMAULI KR. PRASAD, J.
By the orders impugned the claim of respondent no. 2 Bhagirathi Bai,
since deceased, to be registered as an occupant under Section 45 of the
Karnataka Land Reforms Act, 1961 in respect of the land measuring 14 cents
in Survey Nos. 353/1 and 353/2 in the Village Attavar in Taluka Mangalore
in the District of Dakshina Kannada has been upheld.
Leave granted.

According to the appellant, his mother was the owner of the land
measuring in all 14 cents in Survey No. 353/1 and 353/2 at Village Attavar
within Taluka Mangalore in the District of Dakshina Kannada. She gave on
lease the aforesaid land to Bhagirathi, respondent no. 2 herein by a
registered deed dated 26th of October, 1953 on an yearly rent of Rs. 42 and
the deed styled as vacant land “chalageni” was executed. According to the
appellant, the land at the time of lease contained five standing coconut
trees and respondent no. 2, hereinafter referred to as the tenant, was
entitled to make improvement therein to an extent of only Rs. 5,000/-. It
is the case of the appellant that in terms of the lease the tenant
constructed a residential house on the demised property and continued to be
in occupation of the same.

 
By Section 34 of the Karnataka Land Reforms (Amendment) Act, 1973
(Karnataka Act 1 of 1974) Section 44 and Section 45 were substituted with
effect from 1st of March, 1974 in the Karnataka Land Reforms Act, 1961,
hereinafter referred to as ‘the Act’. Section 44 of the Act, inter alia,
provides that all land held by or in possession of the tenants with effect
from 1st of March, 1974(hereinafter to be referred to as the appointed
day), shall stand transferred to and vest in the State Government. Section
45 of the Act, inter alia, provides that the land which a tenant has been
cultivating personally before the date of vesting shall be entitled to be
registered as an occupant. A tenant entitled to be registered as an
occupant was required to file a petition before a tribunal under Section
48A of the Act.
Respondent no. 2, filed an application in the prescribed form, inter
alia, alleging that the tenancy in question is in respect of agricultural
land and she was cultivating the same prior to 1st of March, 1974 and,
therefore, she is entitled to be registered as an occupant in terms of
Section 45 of the Act. The appellant, hereinafter referred to as ‘the land
owner’, resisted her claim and the tribunal rejected the tenant’s claim,
but the same was set aside by the High Court in a petition filed by the
tenant and the matter was remitted back to the tribunal for
reconsideration. While doing so, the High Court observed that the tribunal
shall consider the “chalageni”. After the remand the tribunal conducted
spot inspection on 15th of December, 1987 and found existence of a dwelling
house, a firewood-depot and a few coconut trees. The tribunal by
majority held that the land was not an agricultural land on the date of
inspection but concluded that it was used as agricultural land 35-40 years
ago and accordingly upheld the claim of the tenant. The dissenting Member,
however, observed that the land in question cannot be said to be an
agricultural land. The learned Member found that part of the land was
leased out by tenant’s husband for firewood depot and he is a truck owner.
The dissenting Member expressed his view in the following words:
“………..It is learnt from the enquiry that the petitioner’s
husband is a truck (lorry) owner, the main source of income of
the petitioner is from the income derived from the rent and
selling the fire-wood from the fire-wood depot. The petitioner
is not an agriculturist, at any time. Apart from this the
petitioner has no cultivable lands also, because there are 5
coconut trees in the courtyard that cannot be treated the
petition land as agricultural lands”

Mr. Basava Prabhu S.Patil, learned Senior counsel appears on behalf
of the appellant and submits that the land in question was not an
agricultural land on the appointed day. Further the tenant was not an
agriculturist and not cultivating the land personally on the said date and,
therefore, cannot be registered as an occupant in terms of Section 45 of
the Act. Mr. S.N. Bhat appearing for the tenant as also Ms. Vishruti
Vijay, learned counsel representing the State submit that the land in
question was an agricultural land which was being cultivated personally by
the tenant and, therefore, she was rightly registered as an occupant by the
tribunal and the said order has rightly been affirmed by the High Court.
In view of the submission advanced it is advisable to refer to the scheme
of the Act. As the claim is raised under Section 45 of the Act, we deem it
expedient to reproduce the same which reads as follows:
“45. Tenants to be registered as occupants of land on certain
conditions.—(1) Subject to the provisions of the succeeding
sections of this Chapter, every person who was a permanent
tenant, protected tenant or other tenant or where a tenant has
lawfully sub-let, such sub-tenant shall, with effect on and from
the date of vesting be entitled to be registered as an occupant
in respect of the lands of which he was a permanent tenant,
protected tenant or other tenant or sub-tenant before the date
of vesting and which he has been cultivating personally.
(2) If a tenant or other person referred to in sub-section (1),—

 
i) holds land partly as owner and partly as tenant but the
area of the land held by him as owner is equal to or
exceeds a ceiling area he shall not be entitled to be
registered as an occupant of the land held by him as a
tenant before the date of vesting;
ii) does not hold and cultivate personally any land as an
owner, but holds land as tenant, which he cultivates
personally in excess of a ceiling area, he shall be
entitled to be registered as an occupant to the extent
of a ceiling area;

iii) holds and cultivates personally as an owner of any land
the area of which is less than a ceiling area, he shall
be entitled to be registered as an occupant to the
extent of such area as will be sufficient to make up his
holding to the extent of a ceiling area.
(3) The land held by a person before the date of vesting and in
respect of which he is not entitled to be registered as an
occupant under this section shall be disposed of in the manner
provided in section 77 after evicting such person.”
The aforesaid section, inter alia, provides that a tenant holding the
land and cultivating it personally on and from the date of vesting shall be
entitled to be registered as an occupant. The expression ‘to cultivate
personally’, ‘land’ and ‘tenant’ have been defined under Section 2(11),
2(18) and 2(34) of the Act. The person claiming to be registered as a
tenant has to satisfy that he is not only a tenant but also an
agriculturist who cultivates personally the land held on lease. Section
2(34) defines ‘tenant’ as follows:

“2.Definitions.- (A) In this Act, unless the context otherwise
requires,-
xxx xxx xxx

(34) “Tenant” means an agriculturist who cultivates personally
the land he holds on lease from a landlord and includes—
(i) a person who is deemed to be a tenant under section 4;
(ii) a person who was protected from eviction from any land
by the Karnataka Tenants (Temporary Protection from
Eviction) Act, 1961;
(ii-a) a person who cultivates personally any land on lease
under a lease created contrary to the provisions of section
5 and before the date of commencement of the Amendment Act;
(iii) a person who is a permanent tenant; and
(iv) a person who is a protected tenant.
Explanation.—A person who takes up a contract to cut grass, or
together the fruits or other produce of any land, shall not on
that account only be deemed to be a tenant;”

It is an inclusive definition and in the present case, we are
concerned with the main provision. To come within the definition of tenant
a person has to be an agriculturist and such a person is required
personally to cultivate the land he holds on lease. The expression
‘cultivate personally’ has been defined under Section 2(11) of the Act,
which reads as follows:

“2.Definitions.- (A) xxx xxx xxx
(11) “To cultivate personally” means to cultivate land on one’s
own account,—
i) by one’s own labour; or
ii) by the labour of any member of one’s family or;

iii) by hired labour or by servants on wages payable in
cash or kind, but not in crop share, under the
personal supervision of oneself or by member of
one’s family;
Explanation I.— In the case of an educational, religious or
charitable institution or society or trust, of a public nature
capable of holding property, formed for educational, religious
or charitable purpose, the land shall be deemed to be cultivated
personally if such land is cultivated by hired labour or by
servants under the personal supervision of an employee or agent
of such institution or society or trust;
Explanation II.— In the case of a joint family, the land shall
be deemed to be cultivated personally, if it is cultivated by
any member of such family.;”
As stated earlier, to satisfy the requirement of Section 45 of the
Act to be registered as an occupant, the claimant has to satisfy that he is
the tenant in respect of land which he is cultivating personally on the
appointed day. Neither the tribunal nor the High Court has gone into the
question as to whether the property said to have been given on lease to the
tenant on the appointed day, came within the definition of land under the
Act. Further, the tribunal and the High Court have not addressed the issue
as to whether the same was an agricultural land and was being cultivated on
or before the appointed day by the tenant personally. The tribunal has
made spot inspection much later than the appointed day on 15th December,
1987 which, in our opinion, has no relevance at all with the rights of the
parties. Here, the rights of the parties have to be crystallized on the
basis of what existed on the appointed day. Neither the Tribunal nor the
High Court has gone into this question in the right perspective. We are of
the opinion that the impugned orders of the learned Single Judge and that
of the Division Bench as also of the Tribunal deserve to be set aside and
the matter remitted back to the tribunal for its consideration in
accordance with law. We make it clear that the observation made in this
order is for the purpose of its disposal and shall have no bearing on the
merit of the case.

In the result, we allow this appeal, set aside the impugned judgment
and remit the matter back to the tribunal for reconsideration in accordance
with law bearing in mind the observations aforesaid. In the facts and
circumstances of the case there shall be no order as to costs.
……………………..………………………………..J.
(CHANDRAMAULI KR. PRASAD)

 

 
…….….……….………………………………..J.
(KURIAN JOSEPH)
NEW DELHI,
OCTOBER 7, 2013
———————–
13

 

 

 

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