Case: STATE OF KARNATAKA Vs. Y. MOIDEEN KUNHI (D) BY LRS. &amp; ORS.

income of such person or family from such source. As we have already referred to, Section 79-B deals with prohibition of holding agricultural land by certain persons beyond a specified limit. Sub- clause (1) (a) provides that no person other than a person cultivating land personally shall be entitled to hold land. The said section further provides:- (b) it shall not be lawful for,- (i) an educational, religious or charitable institution or society or trust, other than an institution or society or trust referred to in sub-section (7) of section 63, capable of holding property; (ii) a company; (iii) an association or other body of individuals not being a joint family, whether incorporated or not; or (iv) a co-operative society other than a co- operative farm, to hold any land. (2) Every such institution, society, trust, company, association, body or co-operative society,— (a) which holds lands on the date of commencement of the Amendment Act and which is disentitled to hold lands under sub-section (1), shall, within ninety days from the said date, furnish to the Tahsildar within whose jurisdiction the greater part of such land is situated a declaration containing the particulars of such land and such other particulars as may prescribed; and (b) which acquires such land after the said date shall also furnish a similar declaration within the prescribed period. (3) The Tahsildar shall, on receipt of the declaration under sub-section (2) and after such enquiry as may be prescribed, send a statement containing the prescribed particulars relating to such land to the Deputy Commissioner who shall, by notification, declare that such land shall vest in the State Government free from all encumbrances and take possession thereof in the prescribed manner. (4) In respect of the land vesting in the State Government under this section an amount as specified in section 72 shall be paid. Explanation.—For purposes of this section it shall be presumed that a land is held by an institution, trust, company, association or body where it is held by an individual on its behalf. x x x x x 104. Plantations.— The provisions of section 38, section 63 other than sub-section (9) thereof, sections 64, 79-A, 79-B and 80, shall not apply to plantations. Explanation.—In this section Plantation means land used by a person principally for the cultivation of plantation crop and includes,— (i) any land used by such person for any purpose ancillary to the cultivation of such crop or for preparation of the same for the market; and (ii) agricultural land interspersed within the boundaries of the area cultivated with such crop by such person, not exceeding such extent as may be determined by the prescribed authority as necessary for the protection and efficient management of such cultivation. 12. On construction of different provisions of the 1961 Act, we find that in the event the Tribunals finding is correct that the major part of the land which the declarants have claimed to be plantation fits that description, then the prohibition imposed on holding of land by entities referred to in Sub-section 1 of Section 79-B would not apply, having regard to the provisions of Section 104 of the Act. But there is a factor which has not been clarified before us in course of hearing, which in our opinion would have had material impact on the rival claims. As per the deed of sale, the partnership firm had obtained forest area of 3485.83 acres. In the event this area is not held to be under plantation, then the land which has been found by the Tribunal to be beyond ceiling limit would be much beyond than what has been computed. Another issue which also appears to have not had been considered by the Tribunal and also the High Court is that the estate was originally purchased by registered firm. It has not been explained by the declarants as to how the estate of the firm devolved upon its partners. No legal instrument has been brought to our notice through which property of the firm became the partners individual property. This issue is of significance because under Section 79(1)(b)(iii), there is prohibition on an association or other body of individuals not being a joint family, whether incorporated or not in holding land. The latter factor, however, would assume importance in the event the land claimed to be under plantation is found to be incorrect as originally major part of the estate was forest land. But to determine this question, we do not think proper examination of factual situation had been undertaken. On this aspect of the dispute, States plea is that the spot inspection took place in a single day and having regard to the area involved, such an exercise was impossible. If this contention is examined in isolation, we would have had accepted the view of the High Court that at this stage there ought not to be any factual enquiry. But considering the fact that land purchased included large tract of forest land, we are of the view that the scrutiny on the part of the authorities in the case of the declarants land was inadequate. This is one of the main grounds on which the present appeal is founded. There is reference to a Writ Petition in the paper book filed by the original declarants with prayer for felling of trees on the subject-land. The petition was registered as Writ Petition No.42774 of 1982. In that proceeding an interim order was passed permitting felling of trees by the petitioners as per a list subject to the provisions of the Karnataka Preservation of Trees Act, 1976. After obtaining the interim order permitting such felling of trees, however, the writ petition was dismissed as not pressed at the instance of the declarants by an order passed on 7 th November, 1990. The said writ petition was dismissed as withdrawn after obtaining interim order, we do not think that the result of that writ petition would have any bearing on the present appeal.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]From the judgment of the Review Court, we find that point was taken by the State that the estate was purchased by a firm but declaration of holding under Section 66 was given by three individuals. But the Review Court did not find any flaw in such exercise being undertaken by the individual declarants. On the other hand, the declaration filed under Section 66 of the 1961 Act was found to be valid for the reason that it was not the firm who had filed the declaration but three persons in their individual capacity12. On construction of different provisions of the 1961 Act, we find that in the event the Tribunals finding is correct that the major part of the land which the declarants have claimed to be plantation fits that description, then the prohibition imposed on holding of land by entities referred to in Sub-section 1 of Section 79-B would not apply, having regard to the provisions of Section 104 of the Act. But there is a factor which has not been clarified before us in course of hearing, which in our opinion would have had material impact on the rival claims. As per the deed of sale, the partnership firm had obtained forest area of 3485.83 acres. In the event this area is not held to be under plantation, then the land which has been found by the Tribunal to be beyond ceiling limit would be much beyond than what has been computed. Another issue which also appears to have not had been considered by the Tribunal and also the High Court is that the estate was originally purchased by registered firm. It has not been explained by the declarants as to how the estate of the firm devolved upon its partners. No legal instrument has been brought to our notice through which property of the firm became the partners individual property. This issue is of significance because under Section 79(1)(b)(iii), there is prohibition on an association or other body of individuals not being a joint family, whether incorporated or not in holding land. The latter factor, however, would assume importance in the event the land claimed to be under plantation is found to be incorrect as originally major part of the estate was forest land. But to determine this question, we do not think proper examination of factual situation had been undertaken. On this aspect of the dispute, States plea is that the spot inspection took place in a single day and having regard to the area involved, such an exercise was impossible. If this contention is examined in isolation, we would have had accepted the view of the High Court that at this stage there ought not to be any factual enquiry. But considering the fact that land purchased included large tract of forest land, we are of the view that the scrutiny on the part of the authorities in the case of the declarants land was inadequate. This is one of the main grounds on which the present appeal is founded. There is reference to a Writ Petition in the paper book filed by the original declarants with prayer for felling of trees on the subject-land. The petition was registered as Writ Petition No.42774 of 1982. In that proceeding an interim order was passed permitting felling of trees by the petitioners as per a list subject to the provisions of the Karnataka Preservation of Trees Act, 1976. After obtaining the interim order permitting such felling of trees, however, the writ petition was dismissed as not pressed at the instance of the declarants by an order passed on 7 th November, 1990. The said writ petition was dismissed as withdrawn after obtaining interim order, we do not think that the result of that writ petition would have any bearing on the present appeal.