HARSHA V. RAIversusSTATE OF KARNATAKA & ANR.

                        (2013] 10 S.C.R. 222


A                          HARSHA V. RAI
                                   V.
                  STATE OF KARNATAKA & ANR.
                  (Civil Appeal No. 9031 of 2013)
                         OCTOBER 7, 2013
B
              [CHANDRAMAULI KR. PRASAD AND
                    KURIAN JOSEPH, JJ.]

          Kamataka Land Reforms Act, 1961 - s.45 - Entitlement
C   of respondent no. 2 to be registered as an occupant uls. 45 -
    Tribunal by majority upheld the claim of respondent no.2
    holding that the land in question was not agricultural land on
    the date of inspection but concluded that it was used as
    agricultural land 35-40 yea-nrago - Order upheld by High
D   Court~ On .appeal, held: To satisfy the requirement of s.45
    to be registered as an occupant, the claimant has to satisfy
    that he was the tenant in respect of land which he was
    cultivating personally on the appointed day (1st March, 1974)
    - Neither the tribunal nor the High Court went into the question
E   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
    did not address the issue as to whether the same was an
    agricultural land and was being cultivated on or before the
F   appointed day by the tenant personally - Tribunal made spot
    inspection much later than the appointed day on 15th
    December, 1987 which had no relevance at all with the rights
    of the parties - Rights of the parties have to be crystallized
    on the basis of what existed on the appointed day - Matter
G   remitted back to tribunal.
         Respondent no.2, filed application, inter alia, alleging
    that there was tenancy in respect of agricultural land and
    she was cultivating the same prior to 1st March, 1974 and,

H                                222
 HARSHA V. RAI v. STATE OF KARNATAKA & ANR. 223


therefore, she was entitled to be registered as an            A
occupant in terms of Section 45 of the Karnataka Land
Reforms Act, 1961. Section 45 was substituted in the Act
with effect from 1st of March, 1974.
     The tribunal rejected the claim of respondent no.2,      B
but the same was set aside by the High Court and the
matter was remitted back to the tribunal for
reconsideration. After remand, the tribunal conducted
spot inspection 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   C
on the date of inspection but concluded that it was used
as agricultural land 35-40 years ago and accordingly
upheld the claim of respondent no.2. The order was
upheld by the High Court.
                                                              D
    In the instant' appeal, the question which arose for
consideration was whether respondent no. 2 was entitled
to be registered as an occupant under Section 45 of the
Karnataka Land Reforms Act, 1961 in respect of land in
question.                                                     E
    Allowing the appeal, the Court
     HELD: 1. Section 45 of the Karnataka Land Reforms
Act, 1961, inter alia, provides that a tenant holding the
land and cultivating it personally on and from the date of F
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 . G
an agriculturist who cultivates personally the land held
on lease. Sectipn 2(34) defines 'tenant'. It is an inclusive
definition. To cQme 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 H
    224      SUPREME COURT REPORTS              [2013] 10 S.C.R.

A lease. The expression 'cultivate personally' has been
  defined under Section 2(11) of the Act. 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
B personally on the appointed day (1st March, 1974).
  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
C 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 has no relevance at all with the rights of the
0 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. The impugned
  orders of the High Court as also of the Tribunal deserve
E to be set aside and the matter remitted back to the
  tribunal for its consideration in accordance with law.
  [Paras 6, 7, 8, 9] [227-A; 228-C-E; ·229-C-D; 230-B-F]

      CIVIL APPELLATE JURISDICTION : Civil Appeal No.
F 9031 of 2013.
        From the Judgment & Order dated 20.12.2005 of the High
    Court of Karnataka at Bangalore in W.A. No. 3714 of 2005.
                                           ·•

       Basav Prabhu S. Patil, B. Subrahmanya Prasad, Anirudh
G Sanganeria, Venkatakrishna Kunduru, R.D. Upadhyay, S.N.
  Bhat, Vishruti Vijay (for Anitha Shenoy) for the appearing
  parties.
          The Judgment of the Court was delivered by
H
 HARSHA V. RAI v. STATE OF KARNATAKA & ANR.                     225


     CHANDRAMAULI KR. PRASAD, J. 1. By the orders                       A
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         B
Kannada has been upheld.

     2. Leave granted.

     3. According to the appellant, his mother was the owner
of the land measuring in all 14 cents in Survey No. 353/1 and           C
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.                D
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             E
constructed a residential house on the demised property and
continued to be in occupation of the same.

       4. 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,
                                                                        F
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        G
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.      H
    226       SUPREME COURT REPORTS                   [2013) 10 S.C.R.


A       5. 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.
B 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
c 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
0 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
E 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
F         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"
G
       6. 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
H land personally on the said date and, therefore, cannot be
 HARSHA V. RAI v. STATE OF KARNATAKA & ANR.                   227
      [CHANDRAMAULI KR. PRASAD, J.]
registered as an occupant in terms of Section 45 of the Act.          A
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          B
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:                                                              c
     "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, tfr'otected tenant or other tenant
     or where a tenant has lawfully sub-let, such sub-tenant shall,   D
     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.                        E

     (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       F
             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       G
             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;
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    228        SUPREME COURT REPORTS                [2013] 10 S.C.R.


A          (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.
B
          (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."
c
       7. 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
D 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:
E
          "2.Definitions.- (A) In this Act, unless the context otherwise
          requires,-

                   xxx xxx         xxx
F         (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;
G
                   (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
H
 HARSHA V. RAI v. STATE OF KARNATAKA & ANR. 229
      [CHANDRAMAULI KR. PRASAD, J.]

              lease under a lease created contrary to the           A
              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.              B

    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;"
                                                                    c
     8. 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:     D

    "2.Definitions.- (A) xxx       xxxxxx
      (11) "To cultivate personally" means to cultivate land
            on one's own account,-                                  E

      (i)     by one's own labour; or

      (ii)    by the labour of any mamber of one's family or;

      (iii)   by hired labour or by servants on wages payable       F
              in cash or kind, but not in crop share, under the
              personal supervision of oneself or by member of
              one's family;

           Explanation 1.- In the case of an educational,
    religious or charitable institution or society or trust, of a   G
    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
                                                                    H
    230       SUPREME COURT REPORTS                  [2013] 10 S.C.R.


A         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.;"
B
          9. 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
C   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
D   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
E   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
F   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.

        10. In the result, we allow this appeal, set aside the
G 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.

H 8.8.8.                                              Appeal allowed.