2002 Supreme(Kar) 633

Karnataka High Court
MOHAMMED JAFFAR - Appellant
Versus
STATE OF KARNATAKA - Respondent
Decided On : 10-08-02
W.P. : 8757 of 1999

Headnote:Conferment of occupancy right under Karnataka Rent Control Act scope and application of PTCL Act

       KARNATAKA SCHEDULE CASTES AND SCHEDULE TRIBES (PROHIBITION OF TRANSFER OF CERTAIN LANDS) ACT, 1978 - Section 3(1)(b) - Granted land under the Act - does not include the land over which occupancy rights granted under Land Reforms Act.

       [N. K. Jain, CJ., H. Rangavittalachar & V. G. Sabhahit, JJ.] - The main question while considering the legal position is whether after coming into force of the K.L.R. Act as amended by Karnataka Act No.1 of 1974, the land will automatically vest in the Government or only surplus land or the land for which no application has been made or if an application is made and the same is rejected, the sale of land granted therein will attract the provisions of PTCL Act. A bare reading of Section 3(1)(b) of the PTCL Act makes it clear that the land should be granted by the Government and such land is to be granted to a person belonging to Scheduled Castes or the Scheduled Tribes under the relevant law including agrarian reforms. Once the land is held to be a granted land, the restriction contained in Section 4 regarding the apprehension of transfer of land would apply, meaning thereby such land should be granted by the Government. Section 77 of the K.L.R. Act deals with disposal of surplus land and Section 77 A, which has been inserted by Act 23 of 1998 with effect from 1.11.1998, deals with grant of land in certain cases wherein the tenant was cultivating the land on 1.3.1974 was failed to apply for occupancy right and the land has vested with the Government under Section 44 of the Act. Section 44 of the K.L.R. Act, as stated above, deals with vesting of the land in the Government. As per the argument of the Government Advocate, the entire land vests in the Government. It is clear from the above said provisions of the Act that the Act is an agrarian reforms Act and wherefore the grant made by the Government under Section 77 and 77A of the K.L.R. Act would come within the ambit of "granted land" as the land is granted by the Government under the said Sections of the Act. Therefore, the land, which is not granted by the State Government, cannot prima facie be hit by the provisions of the PTCL Act. It is also clear that all the lands held by or in possession of the tenants vest with the State Government free from all encumbrances and the State Government is entitled to take possession of the said properties. However, as per Section 44(e) the Government is not entitled to take possession of the tenanted land and the permanent tenants, protected tenants and other tenants holding the land are entitled to such right or privileges and subject to such conditions provided under Act. In view of Section 44 of the K.L.R. Act, it is clear that conferment of occupancy right by the Land Tribunal, and not by the Government is only a declaration of pre-existing right which has been conferred on the tenant under Section 45 and vesting of the land is subject to right that is conferred on the tenant for conferment of occupancy right. Section 45 of the K.L.R. Act gives a right to a person who is a tenant on the land to get the occupancy right conferred in his favour and Section 48 and 48A deals with the Constitution of the Tribunals and enquiry by the Tribunal. The occupancy right will be conferred by the Land Tribunal and not by the Government under Section 48A of the KLR Act on a tenant who was cultivating the land personally on 1.3.1974. Therefore, what is conferred on the tenant who was personally cultivating the land on 1.3.1974 is the declaration of his occupancy right of land on 1.3.1974, by the Tribunal. The preamble to the K.L.R. Act clearly shows that the Act is enacted to confer ownership on the tenants and, wherefore, it is clear that the conferment of occupancy right on the tenant who was personally cultivating the land on 1.3.1974 is conferment of ownership on the tenant as per the preamble to the Act and the same is subject to certain restrictions which are imposed in the certificate of registration issued under Section 55 of the Act in form No.10. It is also seen that conferment of occupancy right is only declaration of the fact that the tenant who was personally cultivating the land on 1.3.1974 and the land which has vested with the Government, the tenant is declared as the occupant of the said land subject to the restrictions contained in the certificate of registration and if the tenant proves that he has been personally cultivating the land on 1.3.1974 he cannot be denied conferment of occupancy right. Under the circumstances, it is clear that occupancy right cannot at all fall within the ambit of granted land as defined under, the PTCL Act. Considering the argument of the Government Advocate with regard to automatic vesting of land in the Government, it is seen that the vesting of land in the Government is subject to vested right of a tenant to get occupancy light and for determination of right and conferment of occupancy Land Tribunal, a statutory authority established under Land Reforms Act, is the competent authority to determine the same on a tenant who was personally cultivating the land on 1.3.1974. In view of this, the occupancy right, which has been granted by the Land Tribunal, cannot be construed as "granted land" as defined under the PTCL Act. The learned Single Judge in NARAYAN P. NAIK s (1993 (6) KLJ 244) case and the Division Bench in Lalitha Nagappa Naik s (WA No. 5286 of 1999, DD on 14.6.2000) case have not considered these aspects and have wrongly come to the conclusion that the K.L.R. Act is an agrarian reforms Act by itself would not give the tenant to get occupancy right and the argument of the Government Advocate on the reasoning of the said decisions, is not acceptable. Certainly, the decisions in NARAYAN P. NAIK s case (Supra) and Lalitha Nagappa Naik s case (Supra) are not applicable and cannot be said to be a correct law to decide the controversy in the facts of the present case, and the said decisions are liable to be reversed. On the other hand, the learned Single Judge in MOHAMMED JAFFAR s case (ILR 2001 Kar 1931), by an elaborate order, while considering the provisions of Sections 77 and 77A of the KLR Act and has rightly interpreted them with valid reasons. Accordingly, the Court is satisfied with the reasons of the learned Single Judge in Mohammed Jaffar s case, approve the same. On overall consideration and as discussed above, the Court is of the view that the land in respect of which the occupancy right has conferred under Section 48A of the K.L.R. Act would not fall within the ambit of granted land as defined under Section 3(1)(b) of the PTCL Act and answer the referred question in negative.

       Whether a land over which occupancy rights were conferred under Land Reforms Act is covered by the Act?

       KARNATAKA SCHEDULE CASTES AND SCHEDULE TRIBES (PROHIBITION OF TRANSFER OF CERTAIN LANDS) ACT, 1978 - Section 5 -Granted land under -whether a land over which occupancy rights were conferred under Land Reforms Act,-is covered by the Act? No. Karnataka Land Reforms Act -applicability of PTCL Act -whether the provisions of the PTCL Act applies to the lands over which occupancy is granted? No.

       [N. K. Jain, CJ., H. Rangavittalachar & V. G. Sabhahit, JJ.] - Section 44 of the K.L.R. Act, as stated above, deals with vesting of the land in the Government. As per the argument of the Government Advocate, the entire land vests in the Government. It is clear from the above said provisions of the Act that the Act is an agrarian Reforms Act and wherefore the grant made by the Government under Sections 77 and 77A of the K.L.R. Act would come within the ambit of "granted land" as the land is granted by the Government under the said Sections of the Act. Therefore, the land, which is not granted by the State Government, cannot prima facie be hit by the provisions of the PTCL Act. It is also clear that all the lands held by or in possession of the tenants vest with the State Government free from all encumbrances and the State Government is entitled to take possession of the said properties. However, as per Section 44(e) the Government is not entitled to take possession of the tenanted land and the permanent tenants, protected tenants and other tenants holding the land are entitled to such right or privileges and subject to such conditions provided under Act. In view of Section 44 of the K.L.R. Act, it is clear that conferment of occupancy right by the Land Tribunal, and not by the Government, is only a declaration of pre-existing right which has been conferred on the tenant under Section 45 and vesting of the land is subject to right that is conferred on the tenant for conferment of occupancy right. Section 45 of the K.L.R. Act gives a right to a person who is a tenant on the land to get the occupancy right conferred in his favour and Sections 48 and 48A deals with the Constitution of the Tribunals and enquiry by the Tribunal. The occupancy right will be conferred by the Land Tribunal and not by the Government under Section 48A of the KLR Act on a tenant who was cultivating the land personally on 1.3.1974. Therefore, what is conferred on the tenant who was personally cultivating the land on 1.3.1974 is the declaration of his occupancy right of land on 1.3.1974, by the Tribunal. The preamble to the K.L.R. Act clearly shows that the Act is enacted to confer ownership on the tenants and wherefore, it is clear that the conferment of occupancy right on the tenant who was personally cultivating the land on 1.3.1974 is conferment of ownership on the tenant as per the preamble to the Act and the same is subject to certain restrictions which are imposed in the certificate of registration issued under Section 55 of the Act in Form No. 10. It is also seen that conferment of occupancy right is only declaration of the fact that the tenant who was personally cultivating the land on 1.3.1974 and the land which has vested with the Government, the tenant is declared as the occupant of the said land subject to the restrictions contained in the certificate of registration and if the tenant proves that he has been personally cultivating the land on 1.3.1974 he cannot be denied conferment of occupant right.

       Cases Referred: ILR 2001 Kar 1931; 1996 (6) KLJ 244; WA No. 5286 of 1999.