IMPORTANCE OF CIRCULAR UNDER KARNATAKA LAND REVENUE ACT
D.C. Ramesh And Ors. vs State Of Karnataka And Ors. AIR 2003 Kant 480, 2003 (5) KarLJ 291 BENCH:- JUSTICE N.K. Jain, JUSTICE V Sabhahit, JUSTICE H Ramesh “It is well-settled that a circular or notification cannot be inconsistent with the main Act or Rules, but at the same time it can supplement. Once the power has been given to the Deputy Commissioner to pass the order, any circular issued by the Government will amount to an order issued in pursuance of the provisions of the Act. In the circumstances, the circular cannot be said to be inconsistent with the main Act as this circular will be equivalent to Government Order as contemplated under Karnataka Land Revenue Act.”
B.H. Honnalige Gowda vs State Of Mysore And Anr. AIR 1964 Kant 84, AIR 1964 Mys 84 The Revenue Manual which is a compilation of decisions of Government in appeals and revision petitions, and, includes administrative instructions to subordinate revenue officers from time to time, can constitute useful guidance to the interpretation of the provisions of the Land Revenue Code. The elucidation in this compilation that a stipendiary shanbhog is appointed to a vacancy caused by the unavailability of a hereditary shanbhog, seems to negative the concept of an independent post.
It also distinguished the decision 01 the Supreme Court in The Mate of U.P. -v.- Rukmini Raman, AIR 1971 SC 1687 and held as follows : "In my opinion, the facts are distinguishable and the decision relates to transfer by way of gift of a part of the estate which consisted of certain Inamindari villages. In the present instances, the suit land is not an estate inherited as an ancestral property, but it is the service inam land given to the holder of the office. The rule of law laid down in Rukmini Rama's case cannot apply to the fact of the present case. In the result, I hold that the plaintiff's father alone was the exclusive owner of the suit property and the property has been regranted only to the plaintiff. The defendants have failed to prove that it is the joint family property and that the regrant enures to the benefit of plaintiff and defendants. Hence Issues 1 and 2 are answered in the affirmative and Issue No. 5, 6 and Additional Issue No. 1 are answered in the negative."
Justice Sabhahit J. in Appanna -v.- Lakkappa Devappa, 1983 (1) KLJ 482 on consideration of the provisions contained in Section 5 of the Act pertaining to walikarki land has held that in the case of 'walikarki' properties, when a regrant is made in the name of one of the members of the family, who was performing the walikarki services, the grant enures to the benefit of all the holders of that office in the family, and the members of the family have a right to claim partition in the said regranted land.
Nagesh Bisto Desai Etc. Etc vs Khando Tirmal Desai Etc. AIR 1982 SC 887, 1982 SCR (3) 341, Under s. 4 (1) of the Bombay Pargana and Kulkarni Watans (Abolition) Act, 1950 and s. 7 of the Bombay Merged Territories Miscellaneous Alienations Abolition Act, 1955 all the watan lands were re- granted to the plaintiff and he was deemed to be the occupant thereof within the meaning of the Bombay Land Revenue Code. ……….. ….. The Watan Act contemplated two classes of persons. One is a larger class of persons belonging to the watan families having a hereditary interest in the watan property as such and other a smaller class of persons who were appointed as representative watandars and who were liable for the performance of duties connected with the office of such watandars. As already indicated, it would not be correct to limit the word 'Watandar' only to this narrow class of persons who could claim to have a hereditary interest both in the watan property and in the hereditary office. Watan property had always been treated as property belonging to the family and all persons belonging to the watan family who had a hereditary interest in such watan property were entitled to be called "watandars of the same watan" within the Watan Act. ………….The effect of these Acts was to bring out a change in the tenure or character of holding as watan lands but they did not affect the other legal incidents of the property under the personal law. That being so, the members of a joint Hindu family must be regarded as holders of the watan land along with the watandar for the time being and therefore regrant of the lands to the watandar under s. 4(1) of the 1950 Act and under s. 3 of the 1955 Act must enure to the benefit of the entire joint Hindu family.
Doddamma vs Muniyamma And Ors. ILR 2005 KAR 568, 2005 (1) KarLJ 503 It is clear from the above said provisions of the Inams Abolition Act and the provisions of the Land Reforms Act that so far as the rights of the tenants are concerned, the provisions of the Karnataka Land Reforms Act are similar to the provisions of the Inams Abolition Act though the provisions may not be similar in respect of the owners of the lands under Karnataka Land Reforms Act and Inam holders and inamdars under the Inams Abolition Act. However, so far as the tenants are concerned, the effect of the above said proceedings is that from the appointed date, the relationship of the landlord and tenant ceases and the property vests with the Government and the tenant is entitled to conferment of occupancy right as per the provisions of the Inams Abolition Act. The object of the Inams Abolition Act as already culled out from the observations made in MUNIRAJ's case (2004(3) KLJ 570) is to see that the applications attached to the imams are abolished by vesting of the property in the State and the tenants would get occupancy right under the Inams Abolition Act and in substance, there is change of tenure and the property would vest with the State absolutely free from all encumbrances and the relationship of landlord and tenant ceases and on conferment of occupancy right, the tenant would get the right under the Inams Abolition Act. While considering the provisions of the Karnataka Land Reforms Act and dealing with the question as to whether the occupancy right granted in favour of a member of the joint family would enure to the benefit of all the members of the joint family and whether a civil suit can be filed for partition and separate possession in respect of the occupancy right that is granted under the Karnataka Land Reforms Act, the Hon'ble Supreme Court in the case of BALAWWA AND ANR. v. HASANABI AND ORS., (2000) 9 SCC 272 has observed as follows:- “………..High Court was fully justified in coming to the conclusion that the so-called order of the Land Tribunal under the Karnataka Land Reforms Act would enure to the benefit of the other members who were otherwise eligible for a share in the property in question. Therefore, we see no infirmity with that conclusion so as to be interfered with by this Court.”
A division Bench of Karnataka High Court in APPI BELCHADTHI AND ORS. v. SHESHI BELCHADTHI AND ORS., 1982 (2) KLJ 565 has observed as follows:- "18. The questions such as, the existence of a joint family, the rights of the members thereof, the position and power of the manager, and the nature of the property acquired by them are not so simple to be decided by a summary enquiry, and that too without the assistance of trained lawyers. The joint Hindu Family or coparcenary is a creature of Hindu Law. The status of every Hindu family is presumed to be joint, joint in food, worship and estate. That presumption is stronger in the case of brothers. Once the family is proved to be joint, that presumption continues until it is rebutted. Those who allege separation must prove unless it is admitted that there was a separation at some point of time. The question as to whether a particular family retains its character of jointness at a particular time is a difficult question for decision. Mere severance in food and worship does not effect a separation of the family nor separate residence by members operates as a severance of the joint status. We are only mentioning some of these principal features to impress upon that the decision on these questions requires a lot of brooding even by Courts of law. One could only images the difficulties of Tribunals without proper wherewithal."
The same principle is reiterated by the Division Bench of this Court in GURUVAPPA AND ANR. v. MANJAPPU HENGSU AND ORS., ILR 1985 KAR 386, 1985 (1) KarLJ 51 It is clear from the above said observations made by this Court that effect of abolition of the relationship of landlord and tenant or vesting of the property in the State and conferment of occupancy right on the tenant would only result in the change of tenular of the tenant as the same would not affect the personal inam of the parties. When there is a rival claim before the Land Tribunal with regard to the fact that the tenancy is individual or joint family tenancy, the Tribunal is bound to decide the said question while considering the rival applications filed by the members of the family. However, when, application for conferment of occupancy right is filed by one of the members of the family, conferment of the occupancy right on the said applicant, would not preclude the other members of the family to contend that the said tenancy is the joint family tenancy and that they are entitled to partition and separate possession of the shares. Under the Inams Abolition Act, no power is given to the competent authority to pass a decree for partition and what is required to be considered by the authorities is only as to whether the applicant is entitled to conferment of occupancy right as a tenant under Section 5 of the Inams Abolition Act, which is relevant for the purpose of this case to decide the question as to whether he was a permanent tenant on the date of vesting.
Supreme Court in the appeal preferred against the judgment in Mudukappa's case which is reported in AIR 1994 SC 1490 affirming the view of Karnataka High Court held as under :- "It is seen that the words 'tenant', 'the Tribunal', and 'the joint family' have been defined under the Act. If one of the members of the family cultivates the land, it is for and on behalf of the joint family. Under these circumstances, pendings the suit, when the question arose whether the appellant or Joint family is the tenant, that question should be decided by the Tribunal alone under Section 48A read with Section 133 and not by the Civil Court…….”
Justice N.Kumar in the case of Sri Parushuram Nemani Kuduchakar ... vs Smt. Shantabai Ramachandra Reported in ILR 2004 KAR 3355, 2004 (6) KarLJ 275 summarised the point of law on the subject as follows:-
(i) The Tribunal alone has the exclusive jurisdiction to decide the question whether a person is a tenant or not of the land in question, and the Civil Court has no jurisdiction or power to decide the same.
(ii) If a rival claim is made before Land Reforms Tribunal one party contending that the tenancy rights exclusively belongs to himself and another contending that tenancy rights belonging to the joint family and therefore all of them are entitled to grant of occupancy rights, the Tribunal has the jurisdiction to go into the question whether tenancy rights claimed belongs exclusively to one of the member of the joint family or it belongs to the joint family, as it is incidental and necessary to decide the question of grant of occupancy rights.
(iii) If before grant of occupancy rights the Tribunal adjudicates the rival claims and holds that the tenancy pleaded exclusively belongs to the applicant in whose favour the occupancy right is granted and it does not belong to the joint family, the parties have to challenge the said order under the provisions of the Land Reforms Act only and the Civil Court has no jurisdiction to sit in judgment over the said decision of the Land Tribunal nor can ignore the said finding and record a finding contrary to the one recorded by the Tribunal in a suit for partition.
(iv) If tenancy is not disputed or rival claims by members of the joint family are not put forth and agitated, after grant of occupancy rights by the Tribunal, Civil Court can entertain a suit for partition in respect of such property, decide whether such property is a joint family property or the separate property of the applicant to whom the occupancy right is granted, and grant a decree for partition.
(v) If the question of tenancy belonging to the joint family is raised before the Land Tribunal and the Tribunal does nqt decide the said question one way or other and leaves it to be decided by Civil Court; Civil Court is not precluded from going into the said question after the tenancy rights has been granted in favour of one of the claimants, while considering the relief of partition.
(vi) The Civil Court alone has the jurisdiction to entertain a suit for partition and to grant the relief of partition and the Tribunal has no jurisdiction to entertain and grant a decree for partition.
Justice N.Kumar in the case of Sri Parushuram Nemani Kuduchakar ... vs Smt. Shantabai Ramachandra Reported in ILR 2004 KAR 3355, 2004 (6) KarLJ 275 summarised the point of law on the subject as follows:- The division of the ryotwari properties and the parties not living together are not relevant. The suit lands are the Shet-Sanadi lands attached to the village office. As long as the village office continued, the suit lands were to go along with the village office and were to be enjoyed by the holder at the village office. They came to be released from the category of sheth-sanadi inam lands and became ryotwari lands and available for partition only on the abolition of the village office and regrant of the same under Section 5 of the Act. Till then the plaintiffs could not have sought for partition and possession of their shares in the suit lands. Therefore, the fact that the plaintiffs and the defendants had divided their ryotwari properties and were living separately for a long period is of no consequence and does not have any bearing on the right to seek partition of the suit lands which had accrued to them only on 3-9-1973. Accordingly, the contention is rejected.
BHIMAPPA RAMAPPA GHASTI v. ARJAN LAXMAN GHASTI, 1993(2) KLJ 179 that: "after the abolition of the village office and resumption of the land, it becomes a ryotwari land only on regrant and as such it would be released from the nature of its impartibility and becomes available for partition."
CHANDRABAI v. LAXMIBAI, 1975(1) KLJ Sh.N. Item No. 19, as follows: "A grant of land resumed under Section 4 to the holder of the Village Office has to be regarded as compensation to the holder of the Village Office. Until the lands are regranted to the holder of the Village Office, other members of the family derive no title, assuming that the watan was family property which was impartible until its abolition. It is too premature for them to institute a suit for partition before re-grant is obtained by the holder of the Village Office."
JUSTICE S.H. KAPADIA, JUSTICE MUKUNDAKAM SHARMA, JUSTICE K.S. RADHAKRISHNAN, JUSTICE SWATANTER KUMAR, JUSTICE ANIL R. DAVE of Supreme court of India in the case of K.T. PLANTATION PVT. LTD. & ANR. Vs. STATE OF KARNATAKA, 09/08/2011 2011 AIR 3430, 2011(13) SCR 636, 2011 (9) SCC 1 2011(9) JT 65 2011 (8) SCALE 583 Whether Section 110 of the Karnataka Land Reforms Act, 1961, as amended by the Karnataka Land Reforms amendment Act, 1973, (Act 1 of 1974), which came into effect from 01.03.1974, read with Section 79 B of the said Act, introduced by amending Act 1 of 1974, violates the basic structure of the Constitution, in so far as it confers power on the Executive Government, a delegatee of the Legislature, of withdrawal of exemption of Linaloe plantation, without hearing and without reasons? HELD the Land Reforms Act including Section 110 was placed in IXth Schedule in the year 1965 and, hence, immune from challenge in a court of law.
Chapter V of the Act, as we have already indicated, imposes certain restrictions on holding or transfer of agricultural lands. Section 79B(1) of the Act prohibits holding of agricultural land by certain persons which says that with effect on and from the date of commencement of the Amendment Act (Act 1/74) w.e.f. 1.3.1974, no person other than a person cultivating land personally shall be entitled to hold land; and that it shall not be lawful for, a company inter alia to hold `any land'. Further sub- section (2) of Section 79B states that the company which holds lands on the date of the 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 be prescribed; and which acquires such land after the said date shall also furnish a similar declaration within the prescribed period. Sub- section (3) of Section 79B states that 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. Sub- section (4) of Section 79B states that in respect of the land vesting in the State Government under that section an amount as specified in Section 72 shall be paid. Explanation to Section 79B states that for the purpose of that 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. Section 80 bars transfer of any land to non-agriculturists, which says that no sale, gift or exchange or lease of any land or interest therein etc. shall be lawful in favour of a person who is disentitled under Section 79A or 79B to acquire or hold any land.
The first appellant being a company was, therefore, prohibited from holding any agricultural land after the commencement of the Act. If the company was holding any land with Linaloe cultivation on the date of the commencement of the Act, the same would have vested in the State Government under Section 79B(3) of the Act and an amount as specified in Section 72 would have been paid. Section 104, however, states that 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 and is not made subject to the provisions of Section 110.
Chapter VIII of the Land Reforms Act deals with exemption provisions. Section 104 of the Act deals with plantations, which says, that 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, but the power to withdraw the exemption in respect of the plantations, has not been conferred on the State Government, but evidently retained by the Legislature. Legislative policy is therefore clearly discernible from the provision of the Statute itself, that, whenever the Legislature wanted to confer the power to withdraw the exemption to the State Government it has done so, otherwise it has retained the power to itself.
Further, the Land Reforms Act including Section 110 was placed in IXth Schedule in the year 1965 and, hence, immune from challenge in a court of law.
Dr. Roerich and Mrs. Devika had got only the conditional exemption from the provisions of the Land Reforms Act for the lands used for Linaloe cultivation and, hence, they also would have lost ownership and possession of the lands once the exemption had been withdrawn and the land would have vested in the State. The land was purchased by the Company with that statutory condition from Roerichs and, hence, was bound by that condition. We, therefore, reject the contention that Section 110 is void due to excessive delegation of legislative powers.
Section 80 prohibits transfer of any land to non- agriculturalist. Section 80(1)(iv), states that it shall not be lawful to sell, gift, exchange or lease of any land, in favour of a person, who is disentitled under Section 79-B, to acquire or hold any land. The expression "land" has been defined under Section 2(18) which is all comprehensive and takes in agricultural lands, that is land which is used or capable of being used for agriculture, but for the exemption granted under Section 107(1)(vi) lands used for the cultivation of linaloe would have fallen under Section 2(18). But, so far the company is concerned, the prohibition was total and complete since Section 79-B states that it would not be lawful for a company to hold "any land", with effect and from the date of the commencement of the amending Act. The Company, therefore, could not have held the land used for the cultivation of Linaloe on the date of the commencement of the Act. Further on withdrawal of exemption vide notification dated 08.03.94 the Company was disentitled to hold the land belonging to Roerichs' since the same would be governed by the provisions of the Land Reforms Act.
We also find no force in the contention that opportunity of hearing is a pre-condition for exercising powers under Section 110 of the Act. No such requirement has been provided under Section 107 or Section 110. When the exemption was granted to Roerichs' no hearing was afforded so also when the exemption was withdrawn by the delegate. It is trite law that exemption cannot be claimed as a matter of right so also its withdrawal, especially when the same is done through a legislative action. Delegated legislation which is a legislation in character, cannot be questioned on the ground of violation of the principles of natural justice, especially in the absence any such statutory requirement. Legislature or its delegate is also not legally obliged to give any reasons for its action while discharging its legislative function.