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SUPREME COURT OF INDIA
(Karnataka High Court)
G.N. Ray, K. Ramaswamy
STATE OF KARNATAKA, APPELLANT
Versus
KRISHNAJI SRINIVAS KULKARNI AND OTHERS, RESPONDENTS.
Civil Appeal Nos. 7465-82 of 1993
decided on December 16, 1993.
Amendment Act 1 of 1974 - Section 72 - Karnataka Land Reforms Act, 1961 – Tenant - Tenant holding over but in unlawful possession - Had jurisdiction to inquire into and publish declaration as enjoined - It is contended for State that under Section 79-B(1), a person in possession cultivating land personally shall be entitled to hold the land - Company having been declared to be disentitled to hold the lands on or and being enjoined under sub-section (2) to furnish a declaration to having jurisdiction over the land or greater part thereof, it is the "holder" for the purpose of Section 79-B of Act - It is made clear by sub-section (1) of Section 79-B learned senior counsel for the respondents, placing reliance on Section 2(11) of Karnataka Land Revenue Act, 1964, contended that the possession of the company was unlawful as the lease had expired by efflux of time. Five hundred acres were taken possession by landowners and 600 acres though remained in possession of the company Act did not divest their title. Only the title of the land under personal cultivation of the tenant having existed relationship of landlord and tenant alone stood divested as envisaged under Section 44 – Held, facts were that after the lease had by the appellant expired by efflux of time they remained in occupation and were paying the rent to leases were determined by issue of notice under Section 106 of Transfer of Property Act and suit was filed for decree of eviction on the ground of personal requirement. One of was that after the lease was determined accepted the rent - Therefore, as tenant holding over he was entitled to the protection of Section 13 of the Bombay Rent Act - That was negative by all courts and decree for eviction was granted - This Court held that the act of holding over, after expiry of the lease, does not create a tenancy of any kind - After he continued with the consent of landlord he is tenant at sufferance and without consent he is not a tenant holdings over - Under Section 116 of Transfer of Property Act assent of the landlord for the continuance of the possession after the lease was determined creates a new tenancy, but there must be bilateral assent expressly or otherwise. Accordingly it was held that there was no proof that the landlord had accepted the rent agreeing to continue tenancy - Ratio therein has no application to the facts of this case - In M. question therein was whether the lessee of a cinema theatre, after expiry of the lease was having lawful possession under Rule 13 of Madras Cinemas Regulations. In that context this Court held that by language of Rule 3 it is implicit that owner is having a title to the property if he can satisfy the licensing authority that the tenant though was in possession his possession was not lawful but litigious possession and he is not entitled to renewal - Lawful possession cannot be established without a concomitant existence of lawful relationship between landlord and the tenant - This relationship cannot be established against consent of landlord unless his consent becomes under special law irrelevant - Lawful possession is not litigious possession and must have some foundation in legal right to possess the property which cannot be equated with a temporary right to enforce recovery property in case a person who is wrongly or forcefully dispossessed from it - Therefore, ratio in above decision also is not of any assistance to respondents - Appeal allowed
JUDGMENT
K. RAMASWAMY, J. - Special leave granted.
2. These appeals arise from the order of the Division Bench dated January 18, 1990 of the Karnataka High Court in Writ Petition Nos. 11215-11223 of 1985 and batch. The respondents own different extents of agricultural land situated at Jambaga and other villages in Bijapur District of Karnataka State which were in erstwhile part of Bombay province. They leased out their lands to M/s. Sugarcane Products and Industries Ltd., a registered company, by a registered lease dated April 1, 1942 for a period of 30 years which stood expired on March 31, 1973 but remained in possession as tenant. The Karnataka Land Reforms Act, 1961, Act 10 of 1962 (for short the Act) was amended by Amendment Act 1 of 1974 (for short the Amendment Act). The latter came into effect from March 1, 1974. Section 79-B of the Act prohibits holding of agricultural land by certain persons. Sub-section (1)(b) declares that with effect from the date of the commencement of the Amendment Act, it shall not be lawful for a company to hold any land. Sub-section (2) thereof mandates every such company to furnish to the Tehsildar having jurisdiction over the land, a declaration containing the particulars of such land and such other prescribed particulars. Under sub-section (3) thereto the Tehsildar after inquiry made in the prescribed manner should send the statement to the Deputy commissioner who declares, by notification that, "such land shall vest in the State Government free from all encumbrances". Sub-section (4) gives right to the owner of the land payment of compensation prescribed in Section 72. The lessee-company submitted a declaration, though purported to be under Section 66, but on the facts it must be in under Section 79-B(2). The Tehsildar after conducting the inquiry and giving opportunity to the respondents submitted the declaration to the Deputy Commissioner who published in the prescribed manner. Thus 600 acres of demised lands stood vested in the State free from all encumbrances. The respondents challenged the action in the writ petitions contending that as on March 1, 1974 the company was not holding the demised land as a tenant. The company, therefore, was incompetent to file any declaration under Section 66 and it cannot be treated to be under Section 79-B. Its possession is not lawful and that, therefore, the land does not stand vested in the State. The company was not a holder under Section 79-B. The landowners are holder of the lands. The High Court in the impugned order rightly held that the impugned order was without authority of law, being outside the purview of Section 79-B(3) of the Act and the ownership of the respondents, however, was not declared.
3. It is contended for the State that under Section 79-B(1), a person in possession cultivating the land personally shall be entitled to hold the land. The company having been declared to be disentitled to hold the lands on or from March 1, 1974 and being enjoined under sub-section (2) to furnish a declaration to the Tehsildar having jurisdiction over the land or greater part thereof, it is the "holder" for the purpose of Section 79-B of the Act. It is made clear by sub-section (1) of Section 79-B. Shri Javali, learned senior counsel for the respondents, placing reliance on Section 2(11) of the Karnataka Land Revenue Act, 1964, contended that the possession of the company was unlawful as the lease had expired by efflux of time. Five hundred acres were taken possession by the lessors, landowners and 600 acres though remained in possession of the company, the Act did not divest their title. Only the title of the land under personal cultivation of the tenant having existed jural relationship of landlord and tenant alone stood divested as envisaged under Section 44. On expiry of the lease in the year 1972-73 the possession of the tenant was not juridical, but only as tenant holding over but in unlawful possession. The lessors did not accept the rent f
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