Case: K. Kunhambu Vs. Chandramma

The lands in question comprised in Survey No. 70/1(2 acres 02 cents); Survey No. 70/2 (0-72 cents); Survey No. 70/8 (1 acre 70 cents); Survey No. 70/9 (22 cents); Survey No. 70/10 (19 cents) and Survey No. 70/11 (04 cents) situated in Bolur Village within the Mangalore Municipal Limits, Dakshina Kannada, indisputably belonged to the first respondent and that she leased out the said lands in favour of one P.T. Shankaran Nair for a period of ten years under a Registered Lease Deed dated 4.3.1958 for the purpose of running a Saw Mill under the name and style of Mysore Saw Mill. Subsequently, the appellant appears to have purchased the said Saw Mill as a running concern under a Deed of Transfer dated 16.11.1968 and entered into the possession of the leased out lands as well. Since the appellant wanted to enter into direct relationship and obtain rent receipts also in his favour, the first respondent appears to have executed a fresh Registered Lease Deed dated 12.9.1969 in favour of the appellant, in which it appears a specific reference is made to the Deed of Transfer dated 16.11.1968 for a period of ten years from 1.9.1969 to 31.8.1979. In the said Lease Deed, it has been specifically stated that the purpose of the lease of land in dispute was for running a Saw Mill in the name and style of Gokulam Industries and Saw Mills and secured undisputed possession of the above property with liberty to carry on any other industry or business as may deem fit within the period of lease. Apart from conspicuous omission or any mention to permit cultivation of any portion of the land in dispute by the lessee, one of the clauses stipulated that the lessees are liable to keep the Coconut Trees in the leasehold property in proper condition and use only the usufructs of the trees with permission to remove only such of the Coconut Trees, which obstruct the interests of their industry. The rent fixed also was a monthly rental, only. There is no specific permission or provision to use any portion of the land in question for agricultural purposes. While that be the position, the appellant and the second respondent appear to have filed Form No. 7 application under Section 48A before the Taluk Land Tribunal, for grant of occupancy rights under Section 45 of the Karnataka Land Reforms Act, 1961 [hereinafter referred as the `Act] in respect of the lands, which were the subject matter of lease. The Land Tribunal, after considering the objections of the first respondent and holding an inquiry into the claims, appears to have granted occupancy rights in their favour on the view that the claimants were in lawful possesson and cultivation of the said lands as on 1.3.1974. The first respondent, who is the owner of the lands, filed W.P. Nos. 1318/1979 and 1319/1979 before the High Court challenging the said orders. After the amendments introduced to the Act in the year 1986 constituting Land Reforms District Appellate Forums. The writ petitions seem to have been transmitted to the Appellate Authority, Mangalore, and the said Authority, on considering the materials on record, upheld the grant of occupancy rights in respect of the lands in question, except 25 cents of Survey No. 70 over which the Saw Mill as such stood and therefore used for non-agricultural purpose. Aggrieved, the first respondent, as indicated earlier, challenged before the High Court that part of the order granting occupancy rights in favour of the appellant and the appellant challenged that part of the order which denied such occupancy rights in respect of 25 cents of lands, noticed above, over which the Saw Mill building was locatedThe learned Single Judge, while dealing with both the revisions, by his common order under challenge came to the conclusion, keeping in view the nature of the lands, the specific object and purpose of the lease, the monthly rental provided for, the absence of any specific provision or permission to raise cultivation and positive stipulation contained to use the property only for industrial or commercial purposes as well as the factum of actual user of the land only for such industrial and commercial purposes, except as to a claim made of cultivation of a portion of the land during one particular year only in 1968-69 without any authorisation or permission of the owner for cultivating or raising Paddy, came to the conclusion that the lands in question do not satisfy the definition land contained in Section 2(A)(18) and that the appellant cannot be held to be a tenant to claim or be conferred with occupancy rights as defined under the Act in Section 2(A)(34) of the Act. In coming to such conclusion, the learned Judge in the High Court applied the principles laid down in some of the earlier decisions of the very Court, which, in his view, squarely applied to the case on hand. Hence, these appeals.

Reasoning: 8. That apart, it could be seen from the definition of Land in the Act that though it comprehends in the first part land actually cultivated or cultivable, the later exclusionary part of the definition, but does not include house site or land used exclusively for non-agricultural purposes makes it abundantly clear that the actual and exclusive user for non-agricultural purposes, even the land otherwise cultivable or capable of being used for any purposes related to agriculture as enumerated therein, would stand excluded and fall outside the purview of the said definition in Section 2(A)(18) of the Act. When the land in question is itself not land as defined for the purposes of the Act, there is no scope or room for falling back up on the so-called object or aim of the legislation to extend the provisions of the Act to areas specifically left outside it against the express legislative mandate and Will, policy and intention. In addition thereto, the facts specifically disclosed and categorically found by the High Court on the basis of the materials on record would equally belie the claim of the appellant being a tenant as defined in Section 2(A)(34) of the Act9. The decision in Shankara Textile Mills Ltd. case (supra), has been rendered in totally different context and circumstances and cannot lend, in our view, any assistance to support the claims of the appellant in this case. It could be seen from the facts of that case, the company, which owned an extent of 49 acres and 38.25 guntas was able to get only an extent of 13 acres and 32.25 guntas converted into non-agricultural land under Section 95(2) of the Karnataka Land Revenue Act, 1964, leaving the remaining 36 acres and 6.5 guntas without any such conversion allowing it to continue as agricultural land. When acquisition proceedings were initiated to acquire the said land for purposes of Karnataka Improvement Boards Act, 1996, the Company sought to claim under Section 79B(2)(a) of the Act exemption on the ground that the entire extent in its possession was agricultural land and as such was eligible for exemption relying upon Section 81(1)(b)(ii) the lands having been mortgaged to Mysore State Financial Corporation. Though the initial authority countenanced the claim and the Appellate Authority rejected it, the Company approached successfully the High Court and obtained relief, which came to be challenged in this Court, in that context. The relevant observations of this Court at Paragraph 9, set out hereinafter, as to the nature and character of the land that was really the subject matter of consideration and the reasons which weighed with this Court to interfere with the order of the High Court would show that, rather helping the plea of the appellant, it would lend support to the stand of the 1st respondent in view of the peculiar facts of this case and the specific factual finding recorded in favour of the 1st respondent as to the long, continuous and consistent user of the land for non-agricultural purposes of running Saw Mill Industry. Paragraph 9 of the decision reported in Shankara Textiles Mills Ltd. (supra), reads as follows:Thus the High Court has proceeded on the basis that there is no specific finding regarding the nature and usage of the land as agricultural and hence, the Special Deputy Commissioner could not treat it to be an agricultural land merely on account of the fact that permission for conversion of the land under Section 95(2) of the Revenue Act was sought (but admittedly not given). Secondly, it has proceeded on the footing that the land in question does not satisfy any of the characteristics as required under the definition of `land in Section 2(18) of the Act, i.e., Karnataka Land Reforms Act, investing the authorities with the jurisdiction to take proceedings under Section 79-B of the Act. We are afraid that the High Court has misread the facts on record. The consistent stand taken by the authorities is that the land was never converted for non-agricultural use as required by the provisions of Section 95(2) of the Revenue Act. The mere fact that at the relevant time, the land was not used for agricultural purpose or purposes subservient thereto as mentioned in Section 2(18) of the Act or that it was used for non-agricultural purpose, assuming it to be so, would not convert the agricultural land into a non-agricultural land for the purposes either of the Revenue Act or of the Act, viz., Karnataka Land Reforms Act. To hold otherwise would defeat the object of both the Acts and would, in particular, render the provisions of Section 95(2) of the Revenue Act, nugatory. Such an interpretation is not permissible by any rule of the interpretation of statutes. What is further, the respondent-Company had itself filed a declaration under Section 79-B(2)(a) of the Act stating therein that the entire disputed land was agricultural land and had claimed exemption from the provisions of the said Section 79-B under Section 109 of the Act on the ground that the land was mortgaged to the Mysore State Financial Corporation. We are, therefore, unable to agree with the view taken by the High Court on the point10. The land that was the subject matter of consideration by this Court in above noted case was indisputably agriculture and in such cases of land, unless actual conversion under Section 95(2) of the Revenue Act was sought and obtained, it will not stand excluded from the definition in Section 2(A)(18) of the Land Reforms Act. The provision for conversion of the user of the agricultural land for non-agricultural purposes, as envisaged under the Revenue Act, cannot be pressed into aid to deny or deprive the benefit of the later part of the definition of land in Section 2(A)(18) of the Land Reforms Act to a landowner on the basis of its exclusive user for non-agricultural purposes. In substance whereas the past exclusive and continuous use for non-agricultural purposes becomes relevant for extending benefit of later part of Section 2(A)(18), Section 95(2) of the Revenue Act becomes relevant only for future conversions of an agricultural land for its non-agricultural user. But in this case on hand even long prior to the coming into force of the Land Reforms Act on 2.10.1965 or the Revenue Act, the land was shown to have been used for non-agricultural purposes of running Saw Mill Industry and by virtue of the very definition of land in Land Reforms Act which does not seem to have been either specifically noticed or considered in the earlier case, no exception could be taken to the decision of the High Court, according relief to the 1st respondent by sustaining her claim. The decision reported in Om Prakash Agarwal & Ors. (supra), also has no relevance, in that the very issue as to the character of the land and whether the said land answers the description and definition of land in Section 2(14) of the Orissa Land Reforms Act, 1960, itself has been remitted for consideration afresh by the Competent Authority in the absence of any evidence on record to adjudicate the same, with opportunity to lead evidence, and the appeal before this Court was against such a remand order only. The general observations made without any particular reference to the meaning or ambit of the definition can be of no assistance to the appellant in this case when, under the definition of the Karnataka Act, the exclusive user of the land for non-agricultural purposes has the inevitable consequence of excluding such land from the purview of the very definition engrafted in Section 2(A)(18) for the purposes of the Act