JUSTICE H Narayan of Karnataka High Court in the case of S. Siddappa And Others vs State Of Karnataka And Another Reported in ILR 1998 KAR 2757, 1998 (5) KarLJ 36 has directed in these words "Devarakadu, Urduve, Gunduthope, Tankbed, Phut Kareb Kharab Halla, date reserve, burial grounds can only be found in the revenue records. In fact, one finds it difficult even to locate a Gunduthope or a Tankbed in the villages. The gomal lands and the gunduthope is a gift to the villagers. They have been tampered with successfully from time to time by the special orders of the Deputy Commissioners unmindful of the strength of the cattle, the need of the people and the purpose for which the lands have been reserved. Though, relevant provisions are very much found in the statute book, the authorities empowered to enforce these provisions under the Land Revenue Act and Rules have failed to take special care to preserve these lands for the purpose they have been specifically assigned. The quality of the rural life can only be maintained by providing free pasturage to cattle, preserving Gokatte for providing drinking water to the cattle, protecting and preserving Gunduthope where the villagers find some shade for the people and the livestock. It is true that civilisation has entered the life of the rural people by way of roads, electricity, water, rural health and education. These are absolutely necessary for improving the quality of life of the rural people. But, the very essence of village life consists in preserving the lands reserved under Section 71 of the Karnataka Land Revenue Act, Rule 108-I of the Karnataka Land Revenue Rules, 1966. We hardly find a plot consisting of a few well grown trees in the villages. Those are the realms of the past. It, therefore, becomes an urgent necessity for this Court to remind all those concerned who are empowered to enforce these statutory provisions of Land Revenue Act and Rules made thereunder to act and to give effect to every word and letter of statute. The Deputy Commissioners of the districts who are directly incharge of these lands have to be reminded of their duty to protect and preserve these lands specially reserved by the Government. The newly constituted panchayaths in the Panchayath Raj Act are duty bound to protect and preserve and to raise Gunduthope and to maintain Sarkari gomals. Therefore, the Deputy Commissioners are now directed to give effect to the provisions of the Land Revenue Act and to preserve and reserve all these lands specified in the Act for the very purpose specified therein. The Deputy Commissioners shall direct the respective panchayaths to protect and raise these Gunduthopes situated in the respective villages and to further direct the Tahsildar of the Taluk to preserve the gomals for free pasturage. The Deputy Commissioners shall take action through the Tahsildar to evict persons who have been in unauthorised occupation of these reserved lands forthwith. It is needless for this Court to direct in this particular case not to regularise any land in favour of the alleged encroachers since they are Sarkari gomals which are specifically reserved for free pasturage.
PROVISIONS OF CPC NOT APPLICABLE TO LAND TRIBUNAL
K. Somashekara Shetty vs Devaki And Ors. ILR 2005 KAR 3534, 2005 (5) KarLJ 248 It is clear from the provisions of Section 2(a) and Section 2(35) of the Karnataka Land Reforms Act that the provisions of the CPC are applicable only to Courts as defined under the Act and are not applicable to the Land Tribunals. Section 48-A of the Act provides for enquiry by the Tribunal. Sub-section (5) of Section 48-A of the Act States that where an objection is filed disputing the validity of the applicant's claim or setting up a rival claim, the Tribunal shall, after enquires, determine, by order, the person entitled to be registered as occupant after holding an enquiry. Therefore the provisions of CPC are not applicable to the Land Tribunal. Therefore, adopting the procedure prescribed in the CPC as amended by Act No. 22/2002 in the matter of examination-in-chief of the witness by way of affidavit is contrary to mandatory procedure prescribed in Rule 17 of Karnataka Land Reforms Rules. The Tribunal is required to record evidence as provided in Rule 17(5) of the Rules. It is not permissible to the Tribunal for accept examination-in-chief by way of affidavit.
It is not permissible to record evidence in English language not understood by all the members of the Tribunal because Rule 17(1) clearly states that the record of the proceedings shall be maintained in a language understood by all its members. Summary enquiry as provided in Section 34 of the Karnataka Land Revenue Act is prescribed for determination of the question in controversy. The procedure prescribed by the Act and the Rules referred to above has to be followed by the Land Tribunal while holding inquiry.
The Land Tribunal being a creature of statute, has to follow the procedure prescribed in the Rules while determining any question by or under the Act. Merely because there is no prohibition to do it in any other manner, the Tribunal cannot adopt a different procedure, which would defeat the aim and object of the legislation.
It is the case of the petitioner that the land in question is a punja land and is not capable of cultivation. There is no finding recorded by the Tribunal on this aspect of the matter. When the landlord contends that the land is not capable of being cultivated, it is incumbent upon the Land Tribunal give a finding on this point, if necessary by holding a spot inspection. Further, the Land Tribunal is not justified in accepting the examination-in-chief of the witnesses by way of affidavits, particularly in English. It has not recorded a finding whether its members understand English language. In my view, the procedure followed by the Tribunal is contrary to law.
QUOTED CITATIONS
This Court in Bheemappa v. Land Tribunal, Jamakhandi, 1977 (2) Kar.LJ 190 has held that the combined effect of Rule 17 of the Land Reforms Rules and Section 34 of the Land Revenue Act is that evidence should be recorded in the hand-writing of the officer conduting an inquiry. This is a clear obligation imposed upon officers or authorities entrusted with the duty of holding a formal inquiry, recording of evidence on cyclo-styled pro-forma is impermissible.
In Dattatraya Pandit v. Land Tribunal, Hukkeri, 1997 (2) Kar. L.J 209, this Court has held that under Rule 17 of the Karnataka Land Reforms Rules, the Tribunal has to follow the procedure laid down by Section 34 of the Karnataka Land Revenue Act for holding enquires. It is further held that the said provisions do not permit the Tribunal to dispose of the cases merely on affidavits. It is as follows; "According to Rule 17 of the Karnataka Land Reforms Rules, the Tribunal has to follow the procedure laid down by Section 34 of the Karnataka Land Revenue Act for holding enquiries. Section 34 read with Sections 35 and 36 of the Karnataka Land Revenue Act requires that the proceedings of the Tribunal should be held in open and it does not permit the Tribunal to dispose of cases merely on affidavits of parties in which case, the opposite party will have no opportunity of contesting the evidence by cross-examination. No following the above procedure is an illegality which vitiates the proceedings."
In Byrappa and Anr. v. State of Karnataka and Ors., 1981 (2) Kar.L.J.1 a Division Bench of this Court has held that having regard to the requirements of Rule 17 of the Rules, the summary of the evidence in an inquiry before the Tribunal should be recorded by its Chairman and this is mandatory. Any breach of the requirement vitiates the proceeding before the Tribunal.
In Seetharamaiah B.N. and Ors. v. Land Tribunal, Virajpet and Ors., 1985 (1) Kar.L.J. 369, a Division Bench of this Court has held that if the Chairman of the Tribunal is not in a position to write down the deposition of the parties and therefore, dictates the summary of the deposition either to a member of the Tribunal or to a member of the staff of the Tribunal who records the same accurately, any order passed on the basis of the evidence so recorded shall not be interfered with by the High Court.
In Sanna Karibasappa v. Mudegowdra Mahadevappa and Ors., 1978 (2) Kar.L.J. 26 this Court has held that maintaining the order sheet and recording the final order in English, a language not understood by all the members of the Tribunal is a clear violation of the mandatory provisions of Rule 17.
It is not permissible to record evidence in English language not understood by all the members of the Tribunal because Rule 17(1) clearly states that the record of the proceedings shall be maintained in a language understood by all its members. Summary enquiry as provided in Section 34 of the Karnataka Land Revenue Act is prescribed for determination of the question in controversy. The procedure prescribed by the Act and the Rules referred to above has to be followed by the Land Tribunal while holding inquiry.
The Land Tribunal being a creature of statute, has to follow the procedure prescribed in the Rules while determining any question by or under the Act. Merely because there is no prohibition to do it in any other manner, the Tribunal cannot adopt a different procedure, which would defeat the aim and object of the legislation.
It is the case of the petitioner that the land in question is a punja land and is not capable of cultivation. There is no finding recorded by the Tribunal on this aspect of the matter. When the landlord contends that the land is not capable of being cultivated, it is incumbent upon the Land Tribunal give a finding on this point, if necessary by holding a spot inspection. Further, the Land Tribunal is not justified in accepting the examination-in-chief of the witnesses by way of affidavits, particularly in English. It has not recorded a finding whether its members understand English language. In my view, the procedure followed by the Tribunal is contrary to law.
QUOTED CITATIONS
This Court in Bheemappa v. Land Tribunal, Jamakhandi, 1977 (2) Kar.LJ 190 has held that the combined effect of Rule 17 of the Land Reforms Rules and Section 34 of the Land Revenue Act is that evidence should be recorded in the hand-writing of the officer conduting an inquiry. This is a clear obligation imposed upon officers or authorities entrusted with the duty of holding a formal inquiry, recording of evidence on cyclo-styled pro-forma is impermissible.
In Dattatraya Pandit v. Land Tribunal, Hukkeri, 1997 (2) Kar. L.J 209, this Court has held that under Rule 17 of the Karnataka Land Reforms Rules, the Tribunal has to follow the procedure laid down by Section 34 of the Karnataka Land Revenue Act for holding enquires. It is further held that the said provisions do not permit the Tribunal to dispose of the cases merely on affidavits. It is as follows; "According to Rule 17 of the Karnataka Land Reforms Rules, the Tribunal has to follow the procedure laid down by Section 34 of the Karnataka Land Revenue Act for holding enquiries. Section 34 read with Sections 35 and 36 of the Karnataka Land Revenue Act requires that the proceedings of the Tribunal should be held in open and it does not permit the Tribunal to dispose of cases merely on affidavits of parties in which case, the opposite party will have no opportunity of contesting the evidence by cross-examination. No following the above procedure is an illegality which vitiates the proceedings."
In Byrappa and Anr. v. State of Karnataka and Ors., 1981 (2) Kar.L.J.1 a Division Bench of this Court has held that having regard to the requirements of Rule 17 of the Rules, the summary of the evidence in an inquiry before the Tribunal should be recorded by its Chairman and this is mandatory. Any breach of the requirement vitiates the proceeding before the Tribunal.
In Seetharamaiah B.N. and Ors. v. Land Tribunal, Virajpet and Ors., 1985 (1) Kar.L.J. 369, a Division Bench of this Court has held that if the Chairman of the Tribunal is not in a position to write down the deposition of the parties and therefore, dictates the summary of the deposition either to a member of the Tribunal or to a member of the staff of the Tribunal who records the same accurately, any order passed on the basis of the evidence so recorded shall not be interfered with by the High Court.
In Sanna Karibasappa v. Mudegowdra Mahadevappa and Ors., 1978 (2) Kar.L.J. 26 this Court has held that maintaining the order sheet and recording the final order in English, a language not understood by all the members of the Tribunal is a clear violation of the mandatory provisions of Rule 17.
ENTRIES IN REVENUE RECORDS SHOULD BE SUPPORTED BY DOCUMENTS
K. Pasala Reddy @ A.K. Pasalappa ... vs The State Of Karnataka ... on 28 September, 2007 The authorities are duty bound to effect the mutation based on 'Certificate of Grant' within the reasonable period from the date of grant and even otherwise the grantees are also at liberty to approach the authorities for expediting such an action and normally no grantee will keep quiet without getting his name mutated in the revenue records for so long. In spite of giving sufficient opportunity to the petitioner, he has not produced in certified copy of the original documents in respect of the land in question. Therefore, the second respondent has opined that, the claim of petitioner is bereft of reasoning and the entries so made are with an ulterior motive of making a 'wrongful gain' of the suit land belonging to Government. Therefore, having no other alternative, the said authority has directed the Tahsildar, Bangalroe South Taluk to round off all the related entries concerning the suit land made in the revenue records such as IL, RR, RTC and all other allied registers/records as they are all based on created, bogus and concocted entries, It is further significant to note that, when this matter was pending adjudication before this Court since 2005, after nearly expiry of four years also, petitioner has not chosen to produce at least before this Court, any piece of authenticated document or certified copy of the land grant made in favour of the petitioner except placing reliance on the stand taken before the second respondent - Special Deputy Commissioner, When the entries are not supported with any land grant order or any authenticated document as such produced by petitioner, the second respondent has rightly passed the impugned order, after conducting thorough enquiry and discussing elaborately, by recording valid and cogent reasons Hence, in view of the well considered order passed by the second respondent, after critical evaluation of the oral and documentary evidence and other relevant material available on file, interference by this Court, in the impugned order is uncalled for.
DUTY TO ACT FAIRLY
Thomas D' Castelino vs Special Deputy Commissioner ILR 1988 KAR 2936 The law is well settled that every administrative act in the discharge of statutory functions, is treated as judicial if it adversely affects the rights of a citizen or entails a penalty or causes a deprivation. Hence there is a duty to act judicially when property right is at stake, and this duty is a postulate of a system of fair administrative procedure.
DUTY TO ACT FAIRLY
Thomas D' Castelino vs Special Deputy Commissioner ILR 1988 KAR 2936 The law is well settled that every administrative act in the discharge of statutory functions, is treated as judicial if it adversely affects the rights of a citizen or entails a penalty or causes a deprivation. Hence there is a duty to act judicially when property right is at stake, and this duty is a postulate of a system of fair administrative procedure.
LAND CONVERSION - WHEN CONVERSION OF LAND IS NOT REQUIRED - TENANCY AND CONVERSION
The State Government Employees' ... vs The Hubli-Dharwad Urban ILR 1999 KAR 1797, 1999 (3) KarLJ 286 Therefore, once the land is declared as a vacant land, it ceased to be an agricultural land. Once the land is ceased to be agricultural land by application of process of the Urban Land Ceiling Act, the land is no more agriculture. Once the land is not an agricultural land, the question of getting the land converted from agriculture to non-agriculture as provided under Section 95 of Karnataka Land Revenue Act, does not arise. A similar question arose in Civil Appeal No. 6079 of 1997 before the Supreme Court and the Supreme Court held that once the land is treated as a vacant land and exemption is granted, there is no requirement of obtaining permission under Section 95 of Karnataka Land Revenue Act.
1969 (2) Mys.L.J. 184 - Smt. Puttamma and Ors. v. The Mysore Revenue Appellate Tribunal and Anr. wherein it was held as under: To contend that the conversion of the land could be done only if the landlord was in possession of the same; the land in possession of a tenant could be converted from agriculture to non-agricultural purpose by the landlord if the tenant did not opposes such application. Their lordships held in under: Section 95(2) does not authorise the Deputy Commissioner to accord permission for conversion without reference to the inability on the part of the applicant for conversion, to make the conversion he proposes to make, by reason of his not being in possession of the land. If, a tenant or a sub-tenant is in possession and the landlord cannot secure possession except after the eviction of the tenant or the sub-tenant, the proper stage at which an application for conversion could be made is normally the stage when the landlord secures possession from the tenant or the sub-tenant as the case may be.
1978 (1) KLJ 208 - Narasimha Setty K.G. and Ors. v. State of Karnataka and Ors. wherein it is observed as under: Under Section 44 of the Act lands which fall within the definition in Section 2(18) alone stand transferred to and vest in the Government, Lands which ceased to be agricultural lands by order of alienation passed by the Assistant Commissioner are not agricultural lands within Section 2(18) and the Land Tribunal has so jurisdiction to entertain an application under Section 48A and grant occupancy rights in respect of such lands. Failure on the part of the Tribunal to raise the legal presumption under Section 133 Land Revenue Act from the entry in the record of rights vitiates its order.
1983 (2) KLJ 148 - Gopalappa v. Gurushankariah and Ors. was relied upon wherein it was observed as under in paragraphs 9 & 11: As the law stands in the State, the holder of an agricultural land, if he intends using the same for any non-agricultural purpose, should get that land converted for a non-agricultural purpose under Section 95 of the Karnataka Land Revenue Act, 1964 (Land Revenue Act). The land in question has been converted long prior to March 1, 1974 as a non-agricultural land. The learned Judge has found, from the material available, that a few houses had also been built on the land after the land was converted. In this connection the observation made by him at paragraph 5 of the order is as follows: In the instant case Exs.B and F are the endorsements given by the Tahsildar about the grant of alienation. According to the endorsement Ex. F the petitioner had paid the conversion fine before 21-11-72. He got the khatha changed into his name. He applied and got licence for construction of houses and that in fact he had constructed four houses. The material on record clearly establish that the land in question was a converted land. ..... The two enactments, namely, the Land Reforms Act and the Land Revenue Act are distinct and different. Permission to convert an agricultural land for non-agricultural purpose has to be obtained from the prescribed authority under the Land Revenue Act. A person aggrieved by grant of such permission has to challenge the same before the appropriate authorities prescribed thereunder. He cannot bypass that remedy and get that order invalidated before the Land Tribunal constituted under the Land Reforms Act. The Land Tribunal has no power to go behind the statutory order according permission to convert the land for non-agricultural purpose under the Land Revenue Act. Therefore, the finding of the learned Judge that the Tribunal had no jurisdiction to deal with the claim of the appellant and the provisions of the Act were not attracted to the land in question is correct and calls for no interference. Therefore, the appeal is rejected.
In 2003 (5) Kar.L.J. 13 - Madhav Bandopant Kulkarni and Anr. v. The Land Tribunal, Belgaum and Ors. it is observed as under: The document conclusively establishes that as for as this 15 guntas of land is concerned, that by order dated 31-10-1963, non-agricultural permission was granted; this was a good ten years prior to the amendment of the Land Reforms Act. It is a condition precedent under the Land Reforms Act that the land in question must be agricultural land and then alone that the Tribunal assumes jurisdiction to grant occupancy right.... Since the learned Single Judge was in error in having directed the remand, the order passed by the learned Single Judge is modified. The earlier part of the order setting aside the Tribunal's order granting occupancy rights is upheld. It necessarily follows by implication that the Form 7 stands rejected. (paras 3 and 7) ............. The revenue authorities are the deciding authorities in matters of granting non-agricultural permission and if the authorities were satisfied and they did accord conversion from agricultural to non-agricultural, then, on and from the date of the order, the lands change complexion. The existence of a few mango trees would not be sufficient to change the nature and character of the land." (para 6)
C. Hanumanthappa S/O. Chinnappa vs State Of Karnataka 2007 (4) KarLJ 394 when once the order of alienation passed by the competent authority under Land Revenue Act comes into existence, the land ceases to be agricultural one for the purpose of Section 2(18) of the Land Reforms Act. In such an event, the land Tribunal has no jurisdiction to entertain the application under Section 48-A to grant occupancy rights in respect of such land. No doubt the entries in the record of rights raises legal presumption under Section 133 of the Land Revenue Act but this is a rebuttal presumption and as already stated the tenant was successful in establishing that as on 1.3.1974 or immediately prior to the said date, he was cultivating the said lands as a tenant.
C. Hanumanthappa S/O. Chinnappa vs State Of Karnataka 2007 (4) KarLJ 394 The criteria for granting occupancy rights is occupation of the land by the tenant as on 1.3.1974. In the present case apparently even according to the so called tenant he came into possession of this land only from 1970 onwards. In the year 1968 itself Mr. Marulaiah the auction purchaser cum-owner of the land in question got 7 acres of land converted to non-agricultural purpose. ......... Apparently, the application for occupancy rights came to be filed somewhere in 1979 (extended period) much after coming into force the amended Land Reforms Act of 1974. The amendment to the definition of agriculture at Section 2-A (1) includes dairy farming and poultry farming as well. By virtue of Sub-section (1) of Section 91, though proceedings commenced under principal Act, if they were pending as on the date of coining into force of the amended Act, the provisions of principal Act as amended by 1974 Act shall be applicable to such proceedings. ............. Apparently, the land was converted much prior to the amendment of the Land Reforms Act in 1974. The criteria in the present case would be whether the land in question was an agricultural land or not as on the date of application for grant of occupancy rights. A plain reading of definition of agriculture under amended Act of 1974, both dairy farming and poultry farming are classified as agriculture. When the order of conversion is perused in detail, it is noticed the order of conversion obtained by erstwhile owner Marulaiah was also for the purpose of agriculture industries apart from dairy farming and poultry farming. Definitely, agriculture industries does not fall within the ambit of definition of agriculture under Karnataka Land Reforms Act of 1974. The order of conversion does not indicate bifurcation of 7 acres of land for the said three uses, i.e. agriculture industry, poultry farming and dairy farming. This would only mean there was no specification or direction, what extent of land should be made use of by the owner for each of the above said three purposes. In other words, the erstwhile owner Marulaiah had the right or option to make use of the 7 acres of land for any one of the above purposes. He could have used the entire 7 acres of land either for agriculture industries or poultry farming or dairy farming or for all the three. Therefore, 7 acres of land out of 10 acres had lost its character of agriculture. In that view of the matter, the Tribunal could consider grant of occupancy rights only to an extent of 3 acres.
1969 (2) Mys.L.J. 184 - Smt. Puttamma and Ors. v. The Mysore Revenue Appellate Tribunal and Anr. wherein it was held as under: To contend that the conversion of the land could be done only if the landlord was in possession of the same; the land in possession of a tenant could be converted from agriculture to non-agricultural purpose by the landlord if the tenant did not opposes such application. Their lordships held in under: Section 95(2) does not authorise the Deputy Commissioner to accord permission for conversion without reference to the inability on the part of the applicant for conversion, to make the conversion he proposes to make, by reason of his not being in possession of the land. If, a tenant or a sub-tenant is in possession and the landlord cannot secure possession except after the eviction of the tenant or the sub-tenant, the proper stage at which an application for conversion could be made is normally the stage when the landlord secures possession from the tenant or the sub-tenant as the case may be.
1978 (1) KLJ 208 - Narasimha Setty K.G. and Ors. v. State of Karnataka and Ors. wherein it is observed as under: Under Section 44 of the Act lands which fall within the definition in Section 2(18) alone stand transferred to and vest in the Government, Lands which ceased to be agricultural lands by order of alienation passed by the Assistant Commissioner are not agricultural lands within Section 2(18) and the Land Tribunal has so jurisdiction to entertain an application under Section 48A and grant occupancy rights in respect of such lands. Failure on the part of the Tribunal to raise the legal presumption under Section 133 Land Revenue Act from the entry in the record of rights vitiates its order.
1983 (2) KLJ 148 - Gopalappa v. Gurushankariah and Ors. was relied upon wherein it was observed as under in paragraphs 9 & 11: As the law stands in the State, the holder of an agricultural land, if he intends using the same for any non-agricultural purpose, should get that land converted for a non-agricultural purpose under Section 95 of the Karnataka Land Revenue Act, 1964 (Land Revenue Act). The land in question has been converted long prior to March 1, 1974 as a non-agricultural land. The learned Judge has found, from the material available, that a few houses had also been built on the land after the land was converted. In this connection the observation made by him at paragraph 5 of the order is as follows: In the instant case Exs.B and F are the endorsements given by the Tahsildar about the grant of alienation. According to the endorsement Ex. F the petitioner had paid the conversion fine before 21-11-72. He got the khatha changed into his name. He applied and got licence for construction of houses and that in fact he had constructed four houses. The material on record clearly establish that the land in question was a converted land. ..... The two enactments, namely, the Land Reforms Act and the Land Revenue Act are distinct and different. Permission to convert an agricultural land for non-agricultural purpose has to be obtained from the prescribed authority under the Land Revenue Act. A person aggrieved by grant of such permission has to challenge the same before the appropriate authorities prescribed thereunder. He cannot bypass that remedy and get that order invalidated before the Land Tribunal constituted under the Land Reforms Act. The Land Tribunal has no power to go behind the statutory order according permission to convert the land for non-agricultural purpose under the Land Revenue Act. Therefore, the finding of the learned Judge that the Tribunal had no jurisdiction to deal with the claim of the appellant and the provisions of the Act were not attracted to the land in question is correct and calls for no interference. Therefore, the appeal is rejected.
In 2003 (5) Kar.L.J. 13 - Madhav Bandopant Kulkarni and Anr. v. The Land Tribunal, Belgaum and Ors. it is observed as under: The document conclusively establishes that as for as this 15 guntas of land is concerned, that by order dated 31-10-1963, non-agricultural permission was granted; this was a good ten years prior to the amendment of the Land Reforms Act. It is a condition precedent under the Land Reforms Act that the land in question must be agricultural land and then alone that the Tribunal assumes jurisdiction to grant occupancy right.... Since the learned Single Judge was in error in having directed the remand, the order passed by the learned Single Judge is modified. The earlier part of the order setting aside the Tribunal's order granting occupancy rights is upheld. It necessarily follows by implication that the Form 7 stands rejected. (paras 3 and 7) ............. The revenue authorities are the deciding authorities in matters of granting non-agricultural permission and if the authorities were satisfied and they did accord conversion from agricultural to non-agricultural, then, on and from the date of the order, the lands change complexion. The existence of a few mango trees would not be sufficient to change the nature and character of the land." (para 6)
C. Hanumanthappa S/O. Chinnappa vs State Of Karnataka 2007 (4) KarLJ 394 when once the order of alienation passed by the competent authority under Land Revenue Act comes into existence, the land ceases to be agricultural one for the purpose of Section 2(18) of the Land Reforms Act. In such an event, the land Tribunal has no jurisdiction to entertain the application under Section 48-A to grant occupancy rights in respect of such land. No doubt the entries in the record of rights raises legal presumption under Section 133 of the Land Revenue Act but this is a rebuttal presumption and as already stated the tenant was successful in establishing that as on 1.3.1974 or immediately prior to the said date, he was cultivating the said lands as a tenant.
C. Hanumanthappa S/O. Chinnappa vs State Of Karnataka 2007 (4) KarLJ 394 The criteria for granting occupancy rights is occupation of the land by the tenant as on 1.3.1974. In the present case apparently even according to the so called tenant he came into possession of this land only from 1970 onwards. In the year 1968 itself Mr. Marulaiah the auction purchaser cum-owner of the land in question got 7 acres of land converted to non-agricultural purpose. ......... Apparently, the application for occupancy rights came to be filed somewhere in 1979 (extended period) much after coming into force the amended Land Reforms Act of 1974. The amendment to the definition of agriculture at Section 2-A (1) includes dairy farming and poultry farming as well. By virtue of Sub-section (1) of Section 91, though proceedings commenced under principal Act, if they were pending as on the date of coining into force of the amended Act, the provisions of principal Act as amended by 1974 Act shall be applicable to such proceedings. ............. Apparently, the land was converted much prior to the amendment of the Land Reforms Act in 1974. The criteria in the present case would be whether the land in question was an agricultural land or not as on the date of application for grant of occupancy rights. A plain reading of definition of agriculture under amended Act of 1974, both dairy farming and poultry farming are classified as agriculture. When the order of conversion is perused in detail, it is noticed the order of conversion obtained by erstwhile owner Marulaiah was also for the purpose of agriculture industries apart from dairy farming and poultry farming. Definitely, agriculture industries does not fall within the ambit of definition of agriculture under Karnataka Land Reforms Act of 1974. The order of conversion does not indicate bifurcation of 7 acres of land for the said three uses, i.e. agriculture industry, poultry farming and dairy farming. This would only mean there was no specification or direction, what extent of land should be made use of by the owner for each of the above said three purposes. In other words, the erstwhile owner Marulaiah had the right or option to make use of the 7 acres of land for any one of the above purposes. He could have used the entire 7 acres of land either for agriculture industries or poultry farming or dairy farming or for all the three. Therefore, 7 acres of land out of 10 acres had lost its character of agriculture. In that view of the matter, the Tribunal could consider grant of occupancy rights only to an extent of 3 acres.
LAND GRANT BY DEPUTY COMMISSIONER CANNOT BE CANCELLED BY TAHSILDAR IN THE NAME OF RECTIFYING MUTATION/RTC ENTRY
M.N. Venkateshaiah vs The State Of Karnataka ILR 2005 KAR 5084, 2005 (6) KarLJ 452 , In that view of the matter, we are of the considered opinion that the say of the revenue authorities that the documents produced by the appellant to show that the schedule land was granted in favour of his grandmother and father are bogus because there are no entries in the original dharkast register for the corresponding period, is not correct. The revenue authorities have failed to appreciate the fact that such lapse might have occurred on account of the mistake or direliction of duty on the part of the concerned officer who was entrusted with the duty of making entries in the Dharkast registers. Be that as it may, if the Deputy Commissioner were to initiate proceedings for cancellation of grant in favour of the grandmother and father of the appellant or calling upon the appellant to trace his title to the schedule land, the appellant would have reasonable opportunity to adduce evidence to satisfy the Deputy Commissioner about the existence of the grants. That power which is exclusively available to the Deputy Commissioner, in terms of law, could not have been usurped by the Tahsildar in the purported exercise of his power under Section 133 of the Act. The Tahsildar, undeniably, has no power to pronounce upon the validity of the grants made in favour of the grandmother and father of the appellant in 1940s or on the existence of such grants or bogus nature of the documents produced by the appellant to support his case that in 1940s the schedule land was granted in favour of his grandmother or father. The revenue authroities, in our considered opinion, have exceeded their jurisdiction in recording a finding that the documents produced by the appellant to establish that the schedule land was granted in favour of his grandmother and father are bogus, that too, in a proceeding initiated by the Tahsildar under Section 133 of the Act.
In such fact-situation, having noticed the fact that the grants made in favour of the original grantees were not cancelled by any competent authority, though such a power lies with them under Rule 9(1 )(i) and (v) of the Rules and placing reliance on the Judgment of another Division Bench of this Court in the case of Siddaiah v. Hutchamma, 1982 (2) KLJ SN 28 it was held by this Court thus: "If the contention of the respondent revenue authorities that alienation in favour of the appellants were made in violation of the non-alienation clause of grant is correct, when they ought to have resorted to the above Rule 9 of the Rules for cancellation of the grant itself and only thereafter they could have initiated proceedings under Section 136(3) of the Act for correction of the revenue entries. But, without cancelling the grant, they could not have adopted indirect way of cancelling the grant by changing the mutation entry. This is ex facie impermissible in law".
H.M. Hanumantharaju and Ors. v. State of Karnataka and Ors. 2000(8) Kar. LJ. 58 (DB) : ILR 2001 Kar. : 3445 (DB), Karnataka Land Revenue Act, 1964 (Karnataka Act No. 12 of 1964), Section 128 - Karnataka Land Grant Rules, 1969, Rule 9(1)(i) and (v) - Grantees sold the lands in contravention of the clause prohibiting alienation - Deputy Commissioner ordered to strike off the names of the purchasers from the Revenue Records - Order of the Deputy Commissioner set aside - Proper procedure is to take action for cancelling the grant.
In such fact-situation, having noticed the fact that the grants made in favour of the original grantees were not cancelled by any competent authority, though such a power lies with them under Rule 9(1 )(i) and (v) of the Rules and placing reliance on the Judgment of another Division Bench of this Court in the case of Siddaiah v. Hutchamma, 1982 (2) KLJ SN 28 it was held by this Court thus: "If the contention of the respondent revenue authorities that alienation in favour of the appellants were made in violation of the non-alienation clause of grant is correct, when they ought to have resorted to the above Rule 9 of the Rules for cancellation of the grant itself and only thereafter they could have initiated proceedings under Section 136(3) of the Act for correction of the revenue entries. But, without cancelling the grant, they could not have adopted indirect way of cancelling the grant by changing the mutation entry. This is ex facie impermissible in law".
H.M. Hanumantharaju and Ors. v. State of Karnataka and Ors. 2000(8) Kar. LJ. 58 (DB) : ILR 2001 Kar. : 3445 (DB), Karnataka Land Revenue Act, 1964 (Karnataka Act No. 12 of 1964), Section 128 - Karnataka Land Grant Rules, 1969, Rule 9(1)(i) and (v) - Grantees sold the lands in contravention of the clause prohibiting alienation - Deputy Commissioner ordered to strike off the names of the purchasers from the Revenue Records - Order of the Deputy Commissioner set aside - Proper procedure is to take action for cancelling the grant.
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