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ANY ALIENATION AFTER NOTIFICATION DOES NOT BIND GOVT OR BENEFICIARY 2011 SC

JUSTICE G.S. Singhvi, JUSTICE Asok Kumar Ganguly Vasanth Sreedhar Kulkarni & Ors vs State Of Karnataka & Ors on 14 October, 2011 It is settled law that any person who purchases land after publication of the notification under Section 4(1), does so at his/her own peril. The object of publication of the notification under Section 4(1) is notice to everyone that the land is needed or is likely to be needed for public purpose and the acquisition proceedings point out an impediment to anyone to encumber the land acquired thereunder. It authorises the designated officer to enter upon the land to do preliminaries, etc. Therefore, any alienation of the land after the publication of the notification under Section 4(1) does not bind the Government or the beneficiary under the acquisition. On taking possession of the land, all rights, title and interests in land stand vested in the State, under Section 16 of the Act, free from all encumbrances and thereby absolute title in the land is acquired thereunder.

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IF NO STATUTORY RESTRICTION TO CONVERT LAND AND IF LAND IS IN PROXIMITY OF DEVELOPMENT, VALUE TO THAT OF CONVERTED LAND BE ADOPTED

Justice R.V. Raveendran, Justice P. Sathasivam, Justice A.K. Patnaik, IN Goa Housing Board vs Rameshchandra Govind Pawaskar, DECIDED on 11 October, 2011 – BEFORE SUPREME COURT OF INDIA Where an acquired land is subject to a statutory covenant that it can be used only for agriculture and cannot be used for any other purpose necessarily it will have to be sold as agricultural land as the land owner cannot sell it for any purpose other than agriculture and the purchaser cannot sell it for any purpose other than agriculture. As a consequence, the price fetched for such land will be low even if it is situated near any urban area. But if the same land is not subject to any prohibition or restrictive covenant regarding use and has the potential of being developed either as a residential layout or put to commercial or industrial use, the land will fetch a much higher price; and the market value of such other land with development potential can be determined with reference to the sale price of nearby residential plots by making appropriate deduction for development. On the other hand if the land is to be used only for agricultural purposes, it may not be possible to arrive at the market value thereof with reference to the market value of nearby residential plots. Therefore we are of the considered view that in regard to the land in question, in view of the permanent restriction regarding user, that is it should only be used for agricultural purposes, and the bar in regard to any non-agricultural use, it will have to be valued only as an agricultural land and cannot be valued with reference to sales statistics of other nearby lands which have the potential of being used for urban development.

DECISIONS QUOTED

In Administrator General of West Bengal vs. Collector, Varanasi [1988 (2) SCC 150], this court observed thus in regard to determination of market value : “The market-value of a piece of property, for purposes of Section 23 of the Act, is stated to be the price at which the property changes hands from a willing seller to a willing, but not too anxious a buyer, dealing at arms length. The determination of market-value, as one author put it, is the prediction of an economic event, viz, the price-outcome of a hypothetical sale, expressed in terms of probabilities. Prices fetched for similar lands with similar advantages and potentialities under bonafide transactions of sale at or about the time of the preliminary notification are the usual; and indeed the best, evidences of market-value. Other methods of valuation are resorted to if the evidence of sale of similar lands is not available.”

In Chimanlal Hargovinddas vs. Special Land Acquisition Officer, Poona [1988 (3) SCC 751] this court set out the principle regarding determination of market value. One of the principles mentioned is as under : “The determination has to be made standing on the date line of valuation (date of publication of notification under Section 4) as if the valuer is a hypothetical purchaser willing to purchase land from the open market and is prepared to pay a reasonable price as on that day. It has also to be assumed that the vendor is willing to sell the land at a reasonable price.”

In Subh Ram vs. State of Haryana [2010 (1) SCC 444], this court observed : “It is in this context, in some cases, to avoid the need to differentiate the lands acquired under a common notification for a common purpose, and to extend the benefit of a uniform compensation, courts have observed that the purpose of acquisition is also a relevant factor. The said observation may not apply in all cases and all circumstances as the general rule is that the land owner is being compensated for what he has lost and not with reference to the purpose of acquisition. The purpose of acquisition can never be a factor to increase the market value of the acquired land. We may give two examples. Where irrigated land belonging to 'A' and dry land of 'B' and waste land of 'C' are acquired for purpose of submergence in a dam project, neither 'B' nor 'C' can contend that they are entitled to the same higher compensation which was awarded for the irrigated land, on the ground that all the lands were acquired for the same purpose. Nor can the Land Acquisition Collector hold that in case of acquisition for submergence in a dam project, irrigated land should be awarded lesser compensation equal to the value of waste land, on the ground that purpose of acquisition is the same in regard to both. The principle is that the quality (class) of land, the situation of the land, the access to the land are all relevant factors for determination of the market value.”

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WHETHER THE TWO LANDS CAN BE TERMED AS COMPARABLE LANDS WHICH SHOULD BE SUBJECTED TO THE SAME COMPENSATION

Justice R.V. Raveendran, Justice P. Sathasivam, Justice A.K. Patnaik, IN Goa Housing Board vs Rameshchandra Govind Pawaskar, DECIDED on 11 October, 2011 – BEFORE SUPREME COURT OF INDIA There can be no doubt that similarly situated land in the same area, having the same advantages and acquired under the same notification should be awarded the same compensation. But the question is when one land is a freehold land not subject to any restrictions in regard to user and the adjoining land though similarly situated is subject to a permanent restriction regarding user requiring it to be used only for agricultural purposes, the question is whether the two lands can be termed as comparable lands which should be subjected to the same compensation. We may give a few examples to illustrate the position:

(i) A person constructs two identical houses adjoining each other. He lets out one of them and keeps the other vacant. After some years he sells both the properties. The house sold with vacant possession will fetch a better price than the adjoining premises which is in occupation of a tenant and therefore sold without possession. The fact that both properties are situated adjoining each other and have the same area of construction and face the same road will not mean that the price they will fetch will be the same.

(ii) There are two adjoining properties belonging to the same owner. One falls under area earmarked as commercial and the other falls under area earmarked as residential. Though they are similarly situated, the land which is capable of commercial use is likely to fetch a higher price than a land earmarked for residential use.

(iii) An agricultural land with no development potential sold to another agriculturalist for agricultural purposes will fetch a price which will be lower than the price fetched by an agricultural land with potential of development into residential or commercial plots sold for development into a layout of plots.

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NOTIFICATION LAPSES IF AWARD IS NOT PASSED WITHIN TWO YEARS FROM THE DATE OF NOTIFICATION 2011 SC

Justice G.S. Singhvi, Justice Sudhansu Jyoti Mukhopadhaya in a case before Supreme Court of India in R.Indira Saratchandra vs State Of T.Nadu & Ors. Decided on on 14 October, 2011 It is observed “It may be pointed out that the stipulation regarding the urgency in terms of Section 5-A of the Act has no role to play when the period of limitation under Section 6 is reckoned. The purpose for providing the period of limitation seems to be avoidance of inconvenience to a person whose land is sought to be acquired. Compensation gets pegged from the date of Notification under Section 4(1). Section 11 provides that the valuation of the land has to be done on the date of publication of Notification under Section 4(1). Section 23 deals with matters to be considered in determining the compensation. It provides that the market value of the land is to be fixed with reference to the date of publication of the Notification under Section 4(1) of the Act. The prescription of time limit in that background is, therefore, peremptory in nature. In Ram Chand and Ors. Vs. Union of India and Ors. (1994 (1) SCC 44), it was held by this Court that though no period was prescribed, action within a reasonable time was warranted. The said case related to a dispute which arose before prescription of specific periods. After the quashing of declaration, the same became non-est and was effaced. It is fairly conceded by learned counsel for the respondents that there is no bar on issuing a fresh declaration after following the due procedure. It is, however, contended that in case a fresh notification is to be issued, the market value has to be determined on the basis of the fresh Notification under Section 4(1) of the Act and it may be a costly affair for the State. Even if it is so, the interest of the person whose land is sought to be acquired, cannot be lost sight of. He is to be compensated for acquisition of his land. If the acquisition sought to be made is done in an illogical, illegal or irregular manner, he cannot be made to suffer on that count.”

“Unreported decision of this Court in A.S. Naidu v. State of T.N. wherein a Bench of three Judges held that once a declaration under Section 6 of the Act has been quashed, fresh declaration under Section 6 cannot be issued beyond the prescribed period of the notification under sub-Section (1) of Section 4 of the Act. It has to be noted that there is another judgment of two learned Judges in Oxford English School v. Govt. of T.N. which takes a view similar to that expressed in A.S. Naidu case. However, in State of Karnataka v. D.C. Nanjudaiah view in Narasimhaiah case was followed and it was held that the limitation of 3 years for publication of declaration would start running from the date of receipt of the order of the High Court and not from the date on which the original publication under Section 4(1) came to be made.”

“The view expressed in Narasimhaiah's case (1996 SCC (3) 88) and Nanjudaiah's case ((1996) 10 SCC 619), is not correct and is over-ruled while that expressed in A.S. Naidu's case (supra) and Oxford's case (1995) 5 SCC 206 (OXFORD ENGLISH SCHOOL v. GOVERNMENT OF TAMILNADU AND OTHERS is affirmed.”

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OTHER SIMILAR JUDGMENTS

Hon'ble Apex Court in the case of Vijay Narayan Thatte vs. State of Maharashtra, reported at AIR 2009 SC (Supp) 1952, needs to be looked into. There, the matter went to the Hon'ble Apex Court from judgment of this Court only and consideration by the Hon'ble Apex Court in para 21 shows that language of Section 6 is very specific and clear, insisting application of literal rule of interpretation. Therefore, there was no scope for consideration like equity, public interest or then attempt to find out intention of legislature. There could not be any estoppel against a Statute and as the proviso prescribing period of limitation in clause (ii) of proviso to Section 6 is mandatory, the Hon'ble Apex Court found that it has to operate with all its rigour. The concession by counsel, therefore, was found not of any help to other side. The counsel for the petitioners there had made a statement that objection with respect to period within which section 6 notification has to be issued, from the date of section 4 notification, would not be raised by the petitioners, if the petitioners were finally aggrieved by fresh Section 5A report and subsequent declaration under Section 6. The Hon'ble Apex Court has stated that no statement or concession of advocate can override mandatory statutory provision.

In AIR 1997 SC 2426 (L.N. VENKATESAN v. STATE OF TAMIL NADU AND OTHERS), it was observed that the proceedings of acquisition would not lapse even if the stay granted was regarding possession only and for the purpose of application of Explanation to Section 11-A, it was not necessary that the stay must be against the award and even if the stay was only against dispossession, such period of stay has to be excluded.

M/S. Unique Butyle Tube ... vs U.P. Financial Corporation & Ors ({2003} 2 SCC 455) AIR 2003 SC 2103 While interpreting a provision the Court only interprets the law and cannot legislate it. If a provision of law is misused and subjected to the abuse of process of law, it is for the legislature to amend, modify or repeal it, if deemed necessary. [See Rishabh Agro Industries Ltd. vs. P.N.B. Capital Services Ltd. (2000 (5) SCC 515)]. `The legislative casus omissus cannot be supplied by judicial interpretative process. Language of Section 6(1) is plain and unambiguous. There is no scope for reading something into it, as was done in N.Narasimhaiah and Ors. v. State of Karnataka and Ors. etc. (1996 (3) SCC 88). In State of Karnataka and Ors. v. Nanjudaiah and Ors. (1996 (10) SCC 619) the period was further stretched to have the time period run from date of service of High Court's order. Such a view cannot be reconciled with the language of Section 6(1). If the view is accepted it would mean that a case can be covered by not only clauses (i) and/or (ii) of the proviso to Section 6(1), but also by a non-prescribed period. Same can never be the legislative intent.

M/S. Unique Butyle Tube ... vs U.P. Financial Corporation & Ors ({2003} 2 SCC 455) AIR 2003 SC 2103 "It is well settled principle in law that the Court can not read anything into a statutory provision which is plain and unambiguous. A statute is an edict of the legislature. The language employed in a State is the determinative favour of legislative intent. The first and primary rule of construction is that the intention of the Legislation must be found in the words used by the Legislature itself. The question is not what may be supposed and has been intended but what has been said. "Statutes should be construed not as theorems of Euclid". Judge learned Hand said, "but words must be construed with some imagination of the purposes which lie behind them".

M/S. Unique Butyle Tube ... vs U.P. Financial Corporation & Ors ({2003} 2 SCC 455) AIR 2003 SC 2103 “Two principles of construction one relating to casus omissus and the other in regard to reading the statute as a whole appear to be well settled. Under the first principle a casus omissus cannot be supplied by the Court except in the case of clear necessity and when reason for it is found in the four corners of the statute itself but at the same time a casus omissus should not be readily inferred and for that purpose all the parts of a statute or section must be construed together and every clause of a section should be construed with reference to the context and other clauses thereof so that the construction to be put on a particular provision makes a consistent enactment of the whole statute. This would be more so if literal construction of a particular clause leads to manifestly absurd or anomalous results which could not have been intended by the Legislature.”

AN INTERESTING FACT OF FABRICATION OF REVENUE RECORDS IN 1950’S REPORTED IN CASE LAW

Kolla Bovi vs Thimma Bovi ILR 1991 KAR 3834, 1991 (3) KarLJ 502 "It is quite interesting to note from the records that the 5.00 acres land was originally granted to Thimma Bovi s/o Govinda Bovi on 28-1-1951 and Saguvali Chit was issued. Subsequently on certain complaints of impersonation and Saguvali Chit was being obtained on fraudulent means the Deputy Commissioner in his order dated 12-12-1956 has directed the grant to be cancelled and restore the land to the Government he has also directed the Sub-Divisional Officer (Assistant Commissioner) to conduct enquiry into the matter and to take suitable disciplinary action against the village Officers. The records further discloses that the Shanbogue and Patel of the village were fined Rs. 3/-and 2/- respectively for having attested the wrong thumb impression of Thimma Bovi. One interesting item is there are no further orders of cancellation of grant in the records, instead there is an application dated 31-7-1957 from Thimma Bovi (page 107 of DRR/58-59 of Taluk Office file) that he has prayed for issue of permanent Saguvali Chit and to exempt him from pay Rs. 20/-. There is also a receipt for Rs. 30-47 paid by Thimma Bovi on 13-5-1958. This goes to prove that inspite of the order of the Deputy Commissioner dated 12-12-1956 the grant was not cancelled but he continued to be in possession of the land in contrary to the allegation of the appellant. This proves beyond reasonable doubt that the land is a granted land....."

REGARDING IMPROVEMENTS MADE ON THE LAND – NO PROTECTION – PTCL CASES

The Constitutional validity of the Act was upheld by Karnataka High Court in Judgment reported in I.L.R. 1982 KARNATAKA 1310, Krishnappa S.V. vs. State of Karnataka and later by the Supreme Court in the Decision . , Manche Gowda vs. State of Karnataka. 6. The Transfer of Property Act, 1982 was enacted by the Parliament to define and meet certain parts of the law relating to the transfer of property by act of parties. Section 5 of Transfer of Property Act provides that the expression "transfer of property" means an act by which the living person conveys property, in present or future, to one or more other living person. The transfers covered by Transfer of Property Act are transfers inter-vivos, between the living persons and transfers by operation of law are not covered. The transfer which attracts provisions of Section 4 of the Act are made by the grantee in favour of the transferee and in contravention of the terms of grant. The land is granted by the Government and the conditions of grant confers right on the Government to resume the land in case any of the terms of the grant is contravened. The Government Grants Act, 1895 was enacted to explain the Transfer of Property Act, 1882, so far as it relates to grants from the Government and to remove certain doubts as to the powers of the Government in relation to such grants. Section 2 of this Act inter-alia provides that nothing in the Transfer of Property Act, 1882 shall apply or shall be deemed ever to have applied to any grant made by or on behalf of Government and every such grant shall be construed and take effect as if the Transfer of Property Act had not been passed. Section 3 of this Act then prescribed that all prohibitions, restrictions, conditions and limitations contained in any grant shall be valid and shall take effect according to tenor, and not Rule of Law, statutory enactment of Legislature to the contrary notwithstanding. The plain reading of Sections 2 and 3 of this Act makes it clear that the provisions of Transfer of Property Act have no application in respect of transfers effected by the Government by nature of grant. The Supreme Court in the Decision , State of UP. of Zahoor Ahmad & Anr. observed that the effect of Section 2 of Government Grants Act is that in the construction of an instrument governed by the Government Grants Act the Court shall construe such grant irrespective of the provisions of the Transfer of Property Act. The grant shall be construed to take effect as if the Transfer of Property Act does not apply. The lands in respect of which the Assistant Commissioner holds that the transfer is null and void under Section 4 of the Act are the lands granted by the Government and consequently the provisions of the Transfer of Property Act will have no application while resuming the lands under Section 5 of the Act………………… 7. Even assuming that the provisions of Transfer of Property Act, especially Section 51 of the said Act, is applicable, still the contention that the transferee is entitled to the benefit of the improvements made cannot be accepted. In the first instance, the transfers are declared null and void and the said transfer is deemed not to have conveyed any right, title or interest in favour of the transferee under Section 4 of the Act. Once the transaction is declared null and void, then in the eyes of law the transaction had never taken place and consequently the transferee cannot claim any benefit flowing from such transaction and claim cannot be made in respect of improvements made in pursuance of the transaction. Secondly, Section 51 of the Transfer of Property Act is attracted where the immovable property is transferred and improvements are made by the transferee in good faith that the transferee is absolutely entitled to the property. ……..It is a far cry to suggest that the transferee has made the improvements in good faith or the transfer war secured bona fide. The transferee was fully conscious that the transferee is in possession of the land under a grant issued by the Government and the terms and conditions of the grant specifically prohibits the transferor from alienating the land for a duration of 15 years from the date of grant It is impossible even to suggest that the transferee, who secured the transfer within the period of prohibition, can claim that the transferee acted bona fide and in good faith made improvements on the land. Thirdly, the benefit of Section 51 is available only to a certain category of transferees. The Section prescribes that when the transfree who made improvements in good faith is subsequently evicted by any person having a better title, then only the transferee has a right to require the person causing the eviction to value the improvements and pay the same. The crucial words are transferee is subsequently evicted by any person having a better title. The transferee is evicted by the Assistant Commissioner in exercise of statutory power under Section 5 of the Act and not because the Assistant Commissioner has a better title than that of the transferee. The eviction takes place because the transfer is null and void being in contravention of the terms of the grant made in favour of a member of Scheduled Caste or Scheduled Tribe, The granted land always belong to the Government and the grantee was not entitled to alienate the land during the prohibited period and the Government had a right to resume the same. The right which flows to the transferee under Section 51 of the Transfer of Property Act is available only when the transferee is evicted by a person having better titfe and in our judgment, such a contingency does not arise when the transferee is evicted under Section 5 of the Act because the transfer is declared as null and void under Section 4 of the Act.

DEPRESSED DHARKASTH RULES AND NO RULE PERIOD IN IN MYSORE STATE

B. Mohammad vs Deputy Commissioner, Dakshina ILR 1999 KAR 634, 1998 (6) KarLJ 30 At this stage, it may be apt to advert to in brief the prior statutory position as regards the right to alienate the granted land. In 1929 by order No. R.2122-81/L.R.368-28-5 dated 12th September, 1929, we find certain concessions being granted to persons belonging to depressed classes. (Depressed class as defined did not include all communities classified as Scheduled Caste/Tribe). The main concession in this behalf is what is contained in regard to subsequent transfers. It stated thus: "With a view to speed up the disposal of darkhasts and to prevent the possibility of interested parties exploiting the ignorant members of the Depressed Classes, the Deputy Commissioner, Chitaldurg District suggested the introduction of the system of granting lands to them on a "restricted tenure" on condition that the grantees should not alienate them without the permission of the Deputy Commissioner, and stated that this system was prevalent in certain parts of the Bombay Presidency. The Revenue Commissioner who was consulted in the matter is not in favour of introducing this innovation. He however states that according to the existing standing orders grants made to Adikarnatakas are subject to the condition that the grantees should not alienate them for a period of 10 years, and that to further safeguard their interests the period may be raised suitably, if need be, upto a maximum limit of 20 years. Government agree with the views of the Revenue Commissioner, and direct that the first proposal be dropped and the period within which the lands should not be alienated be raised from 10 to 20 years". ……………….This concession is seen repeated in the subsequent Government orders as well i.e., issued under Section 233 of the Mysore Land Revenue Code from time to time. Meanwhile, the Mysore Land Revenue Act, 1964 was enacted by the Legislature and in exercise of the powers conferred under Section 197 of the said Act, the Mysore Land Grant Rules, 1968, referred to above, were framed. (A variation was made in relation to the period during which an alienation cannot be made). It did not touch upon any enabling condition, enabling to alienate the land to a member of the Scheduled Caste or Tribe.

Bandyamma vs Assistant Commissioner ILR 1993 KAR 2694 b, 1994 (1) KarLJ 1 "GOVERNMENT ORDER NO.R. 2122-81/LR.368-28-5 dated 12 September, 1929. With a view to speed up the disposal of darkhasts and to prevent the possibility of interested parties exploiting the ignorant members of the Depressed Classes, the Deputy Commissioner, Chitradurg District, suggested the introduction of the system of granting lands to them on a "restricted tenure" on condition that the grantees should not alienate them without the permission of the Deputy Commissioner, and stated that this system was prevalent in certain parts of the Bombay Presidency. The Revenue Commissioner who was consulted in the matter is not in favour of introducing this innovation. He however states that according to the existing standing orders grants made to Adikarnatakas are subject to the condition that the grantees should not alienate them for a period of 10 years, and that to further safeguard their interest the period may be raised suitably, if need be, upto a maximum limit of 20 years. Government agrees with the view of the Revenue Commissioner, and direct that the first proposal be dropped and the period within which the lands should not be alienated be raised from 10 to 20 years."



The Government Order referred to in the said judgment dated 12.9.29 reads as follows:
GOVERNMENT OF HIS HIGHNESS
The Maharaja of Mysore
GENERAL AND REVENUE DEPARTMENTS
G.O NO.R 2122-81/L.R.368-28-5, Bangalore, Dated 12th September 1929. Depressed Classess

Directs that the period within which lands granted on consessional terms should not be alienated or raised from ten to twenty years.

Read
1. Government Order No. R. 4850-8/L.R.261-72-141 dated 29th March 1924 and Government Order No. R. 869-75/ L.R 75-25-2 dated 18th August 1925 passing orders reg the grant of lands to depressed classes at concessional rates and directing that the lands granted should not be alienated by them for a period of 10 years.
2. Letter No. M5-161/27-28 dated 9th January 1928 from the Deputy Commissioner, Chitradurga District suggesting that the lands granted to the depressed classes may be given to them on a "restricted tenure" with the condition that such lands should not be alienated without the permission of the Deputy Commissioner etc. as in some parts of the Bombay Presidency.
3. Letters Nos. C3117/27-28 dated 6th February 1928 and No. C. 4800/28-29 dated 1st January 1929 from the Revenue Commissioner in Mysore furnishing his opinion on the points raised by the Deputy Commissioner, Chitradurga in the correspondence read above.

ORDER NO. R.2122-81/L.R.368-28-5 DATED 12th SEPTEMBER 1929

With a view to speed up the disposal of darkhasts and to prevent the possibility of interested parties exploiting the ignorant members of the Depressed classes, the Dy. Commissioner, Chitradurga Dist. Suggested the introduction of the system of granting lands to them on a "restricted tenure" on condition that the grantees should not alienate them with out the permission of the Dy. Commissioner, and stated that this system was prevalent in certain parts of the Bombay Presidency. The Revenue Commissioner who was consulted in the matter is not in favour of introducing this innovation. He however states according to the existing standing orders grants made to Adikarnatakas are subject to the condition that the grantees should not alienate them for a period of 10 years, and that to further safeguard their interests the period may be raised suitably, if need be, up to a maximum limit of 20 years. Government agree with the views of the Revenue Commissioner, and direct that the first proposal be dropped and the period within which the lands should not be alienated be raised from 10 to 20 years."
B. NARAYANASWAMY IYENGAR
Offg. General Secretary to Government.

SUCH GOVERNMENT ORDERS ARE QUASHED AND NO RULE PERIOD ENSUED AFTER 2004

This rule is quoted in Mariyappa vs Dr. N. Thimmarayappa And Ors. ILR 2004 KAR 3298, 2004 (5) KarLJ 255 And held that On the date of the grant, except this Government order, there was no rule framed by the State Government. If that is so, in the absence of any such rule regulating conditions of grant, it cannot be said that a Government Order could put restriction on alienation of such grant. Further, the restriction that could be imposed restraining alienation has to be authorised by the rules as provided under Section 36 of the Code. In the absence of any such rule framed by the State Government regarding disposal of the Government land, no reliance can be placed on the said Government order. Therefore, in our opinion, the decision referred to above has not laid down the correct proposition of law. 

PRESUMPTION OF GENUINENESS OF OLD DOCUMENTS DOES NOT APPLY TO CERTIFIED COPIES

Section 90 of the Evidence Act, lays down the presumption regarding signature and every other part of a thirty year old document to be in that person's handwriting by whom it purports to be signed and executed and permits raising of presumption of its due execution and attestation provided the document is produced from the custody which is proper in Court's view, in the circumstances of the case. The presumption under Section 90 is available and can be raised if thirty years old original document is produced. It does not apply where original is not produced. It does not apply to copy of document even namely the certified copy thereof.

Presumption under Section 90 does not apply to a copy or a certified copy even though thirty years old: but if a foundation is laid for the admission of secondary evidence under Section 65 of the Evidence Act by proof of loss or destruction of the original and the copy which is thirty years old is preduced from proper custody, then only the signature authenticating the copy may under Section 90 be presumed to be genuine. (Sri Lakni Baruan And Others vs Sri Padma Kanta Kalita & Ors AIR 1996 SC 1253.)

This section deals with the admissibility of ancient documents without proof in the usual manner. The rule is founded on Necessity and Convenience. It is extremely difficult and sometimes impossible to prove the handwriting or signature or execution of ancient documents after the lapse of many years. The words duly executed and attested merely mean execution and attestation according to the formalities prescribed by the law. It is therefore presumed that all persons acquainted with execution and of the documents, if any, are dead, and proof of those facts are dispensed with. The presumption relates to the execution of the document, i.e. signature, attestation, etc, in other words, its genuineness. Therefore, under Section 90 of the Indian Evidence Act, it can be presumed that the said Deed is duly executed and attested. The presumption so drawn only relates to the fact that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person's handwriting, and, in the case of a document executed or attested, and that the said document is duly executed or attested by such person. But, the proof of signature or handwriting does not establish that whatever is stated in the document is also correct. That must be proved like any other fact. That has to be proved not only by production of documents but by proving its contents as well. There is no presumption that the document has the legal effect it purports to have. It does not involve any presumption that the contents of the documents are true or that it had been acted upon. Such allegation has to be proved on adducing relevant evidence. It does not involve any presumption of correctness of every statement in it which may contain narratives of past events, or that the contents of the document are true, or that it has been acted upon. Though documents are declared admissible without proof, if produced from proper custody, the credit to be given to them depends on the discretion of the court, and the particular circumstances of each case. It has nothing to do with the question of their relevancy which must be determined in accordance with the rules regarding relevancy. Hence, no presumption under Section 90 of the Evidence Act, could be raised to the effect that the adoption recorded in the deed is proved, when the recitals in the documents show that the person who is adopted is not capable of being taken in adoption, and the deed is not executed by the person giving the boy in adoption. (Gangavva And Ors. vs Ningavva And Ors. ILR 2008 KAR 1667)

WHEN THERE IS NO ORIGINAL DOCUMENT – TO PRODUCE SECONDARY EVIDENCE OF DOCUMENT ONE MUST FOLLOW SEVERAL PROCEDURAL LEGAL ASPECTS IN DOCUMENTS AND ITS CERTIFICATION. WITHOUT THAT IT IS ILLEGAL TO ASSUME AND PRESUME OVER DOCUMENTS

Section 65 of the Evidence Act provides that in cases where the originals have been destroyed or lost, the party may adduce any secondary evidence of the contents of the document. The words "any secondary evidence of the contents of the document is admissible" are very significant and clear enough to exclude any other construction to be placed on them. The word "any" indicates that the party can adduce any kind of secondary evidence. What are public documents is described in Section 74 of the Evidence Act. The definition of "certified copies" is to be found in Section 76 of the Evidence Act. That section provides that any public officer having custody of a public document which any person has a right to inspect, shall give that person, on demand, a copy of it on payment of the legal fees prescribed therefor together with a certificate written at the foot of such copy that it is a true copy of such document or part thereof as the case may he, and that such certificate shall be dated and subscribed by such officer with his name and official title and shall be sealed whenever/ such officer is authorized by law to make use of a seal and that such copies so certified shall be called as "certified copies". That clause 'of Section 65 of the Evidence Act which provides that "in case of (e) or (f) a certified copy of the document but no other kind of secondary evidence is admissible" seems to 'apply to a case in which a public document is still in existence on the public records, and that provision appears to have been intended to protect the originals of public records from the danger to which they would be subject by constant production of such documents in Courts in 'evidence, and the said, clause does not interfere with the general rule of evidence given in Clause (c) i.e., in cases where the original is destroyed or lost.

Regarding issuance of certified copy of public documents, Section 76 Indian Evidence Act reads as follows: "Every public officer having the custody of a public document, which any person has a right to inspect, shall give that person on demand a copy of it on payment of the legal fees therefor, together with a certificate written at the foot of such copy that it is a true copy of such documents or part thereof, as the case may be, and such certificate shall be dated and subscribed by such officer with his name and his official title, and shall be sealed, whenever such officer is authorized by law to make use of a seal; and such copies so certified shall be called certified copies."

Gurubasappa And Ors. vs Gurulingappa AIR 1962 Mys 246, ILR 1961 KAR 878 In deciding this question, it would be necessary to consider the true scope and effect of sections 91 and 92 of the Evidence Act. Chapter VI of the Evidence Act which begins with section 91 deals with the exclusion of oral evidence by documentary evidence, section 91 of the Act provides: "When the terms of a contract, or a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions herein before contained". The normal rule is that the contents of a document must be proved by primary evidence which is the document itself in original. Section 91 is based on what is described as best evidence rule. The best evidence about the contents of a document is the document itself and it is the production of the document that is required by section 91 in proof of its contents. In a sense the rule enumerated by section 91 can be said to be an exclusive rule inasmuch as it excludes the admission of oral evidence for proving the contents of a document except in cases where secondary evidence is allowed to be led under the relevant provisions of the Evidence Act. Section 92 of the Evidence Act runs as follows: "When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to or subtracting from, its terms". It is manifest that section 92 excludes the evidence of oral agreement and it applies to cases where the terms of a contract, grant or other disposition of property have been proved by the production of the relevant documents themselves under section 91 of the Act. In other words, after the document had been produced to prove its terms under section 91, the provisions of section 92 of the Act come into operation for the purposes of excluding the evidence of any oral agreement or the statement for the purpose of contradicting, varying, adding to or subtracting from its terms. It would be noticed that sections 91 and 92 are in effect supplementary to each other. Section 91 would be frustrated without the aid of section 92 and section 92 would be inoperative without the aid of section 91. Since section 92 excludes the admission of oral evidence for the purpose of contradicting, varying, adding to or subtracting from the terms of the document properly proved under section 91, it may be said that it makes the proof of the document conclusive of its contents. Like section 91, section 92 can be said to be based on best evidence rule.

Bhinka And Others vs Charan Singh 1959 AIR 960, 1959 SCR Supl. (2) 798 " The Court shall presume to be genuine every document purporting to be a certificate.......... which is by law declared to be admissible as evidence of any particular fact, and which purports to be duly certified by any officer -of the Central Government or of a State Government................................................ Provided that such document is substantially in the form and purports to be executed in the manner directed by law in that behalf. The Court shall also presume that any officer by whom any such document purports to be signed or certified, held, when he signed it, the official character which he claims in such paper ". Under this section a Court is bound to draw the presumption that a certified copy of a document is genuine and also that the officer signed it in the official character which he claimed in the said document. But such a presumption is permissible only if the, certified copy is substantially in the form and purported to be executed in the manner provided by law in that behalf.

C.H. Shah vs S.S. Malpathak And Ors. AIR 1973 Bom 14, Section 79 only raises a rebuttable presumption with regard to the genuineness of certified copies and that too only if they are executed substantially in the form and in the manner provided by law. ……………………..Section 79, as laid down by the Supreme Court in Bhinka's case already referred to above it must be shown that the certified copy was executed substantially in the form and in the manner provided by law. There would, therefore, be a check or safeguard in so far as the officer certifying it in the manner required by law would have to satisfy himself in regard to the authenticity of the original and in regard to the accuracy of the copy which he certifies to be a true copy thereof. On the other hand if the original of a public document is to be admitted in evidence without proof of its genuineness, there would be no check whatever either by way of scrutiny or examination of that document by an officer or by the Court.

WHEN IT IS NOT A FREE GRANT AND WHEN IT IS FOR UPSET PRICE KPTCL PROVISION ATTRACTION IS TO BE VERIFIED

Hanumanna vs Machappa ILR 1995 KAR 3507, 1996 (1) KarLJ 359 A plain reading of the above contents of the Grant Certificate (Annexure-A) would clearly indicate that it was not a free grant. On the other hand, it would indicate that the land had either been sold or granted for an upset price. There is nothing to indicate from the Grant Certificate that it was a free grant. When the grant is not made free of cost and it is made for an upset price, the condition embodied in the above Rule would clearly indicate that it shall not be alienated for a period of 10 years. It would be required to be stated here itself that the word "upset price" has been defined in Rule 43(2) of the Rules under the Mysore Land Revenue Code, which was in force from 1939 onwards and Rule 43(3) of the amended Rules, which were in force in 1956. Both the definitions are identical and they are extracted herein below :- "43(2). The "Upset Price" shall not be arbitrarily fixed but shall represent the actual market value of the land, as nearly as it can be ascertained by local enquiries and by the examination of records of sales of similar lands in the neighbourhood, and if necessary, of the registration statistics relating to them."

In this context, it has to be stated that in case where the land had been granted to persons belonging to Scheduled Castes or Scheduled Tribes, who are poor, under Rule 43-A(1), the Competent Authority can even waive Rs. 200/- out of the upset price; the balance being payable in annual instalments not exceeding three. Therefore, in the case of poor Scheduled Caste or Scheduled Tribe persons, the price may be fixed by waiving Rs. 200/- out of the upset price. The above definition would clearly indicate that the upset price would represent the actual market value of the land as nearly as it can be ascertained by local enquiries and by the examination of records of sales of similar lands in the neighbourhood and if necessary, of the registration statistics relating to them. But, at the same time, a discretion has also been given to the Competent Authority to reduce the price in the case of persons belonging to the Scheduled Castes and Scheduled Tribes, who are poor. The order of the Assistant Commissioner is, however, silent with regard to the nature of the grant. But, the Order of the Deputy Commissioner would clearly indicate vide Paragraph-2 that the land in question was actually granted to the first respondent as per Order No. HKF.20/59-60 on 29.12.1959 at an upset price. The learned Single Judge, however, on his own interpretation of the sum of Rs. 45/- mentioned in the Grant Certificate, came to the conclusion that the grant was free of cost. There is absolutely no scope for such interpretation having regard to a plain reading of the terms of the grant as incorporated in the preamble to the Grant Certificate, In fact, the learned Single Judge himself has stated in the course of his order that the Saguvali Chit (Annexure-A) does disclose that a sum of Rs. 45/- was collected from the grantee towards Kimmat and Phodi Fee. This would clearly indicate that in the Grant Certificate, the Kimmat and Phodi fee have been separately mentioned and the word 'Kimmat' in its common connotation would mean the 'price'. It may be that the price mentioned therein may not be equal to the market value of the land that was prevailing at the time of the grant, but it was certainly not a free grant. It is to be remembered that in the case of poor Scheduled Caste and Scheduled Tribe persons, even from the upset price, a sum of Rs. 200/- can be waived. Therefore, there was no scope for the learned Single Judge to have interpreted the grant as free of cost. In fact, under the Land Grant Rules, the term 'free grant' and the term 'upset price' are used in different context and in the case of poor Scheduled Caste or Scheduled Tribe persons, even out of the upset price, Rs. 200/- can be waived. Therefore, it is very clear from a plain reading of the contents of the Grant Certificate (Annexure-A), in the light of the provisions of the Land Grant Rules, that it was not a free grant and in all probability, it was for an upset price or for a reduced upset price. In fact, the Deputy Commissioner himself would observe in the course of his order that it was a grant for an upset price. Therefore, by no stretch of imagination, the grant in this Case can be regarded as a free grant. We are unable to share the view of the learned Single Judge that it was a free grant. We shall, therefore, conclude on the basis of the materials placed on record that it was not a free grant, but it was made for an upset price as has been stated by the Deputy Commissioner. That being so, the period of non-alienation would be 10 years and not 15 years as per the Rule stated supra. In this case, the first respondent had sold the land to the appellant after the expiry of the period of 10 years from the date of the Grant Certificate (the Grant Certificate was issued on 4.5.1967 and the land in question was sold on 24.8.1977). Therefore, in any event, there was no contravention of the terms of the grant and as such, the transaction in question was not hit by Section 4 of the Act. Therefore, the alienation made in favour of the appellant cannot be declared as null and void under Sections 4 and 5 of the Act as there was no contravention of the terms of the grant of such land or the law providing for such grant.

PERSONS WHO GOT GRANT OF LANDS AS TENANTS DOES NOT GET ATTRCTED WITH KPTCL ACT

The Full Bench in Chikka Kullegowda's case, ILR 1991 KAR 4557, 1991 (3) KarLJ 142 , after considering the various cases, including Siddamma's case, held as follows: "The above discussion makes it clear: (a) Rule 43-J contemplated grants to persons who were already cultivating the lands for several years, by being in possession in pursuance of temporary leases granted to them, who formed a separate and distinct class; and in such cases, there was no need to stipulate any of the conditions specified in Rule 43-G which were applicable to only grants relating to unoccupied lands where possession was yet to be delivered; (b) in view of the non-obstante clause with which Rule 43-J began and in the absence of any indication in Rule 43-J that the grants under that rule to persons who were already in possession would be governed by the conditions in Rule 43-G and having regard to the express provision in Rule 43-G that the conditions therein would apply only to the grants made in the preceding rules (that is, Rules 43-C and 43-D, the only inescapable conclusion is that conditions stipulated in Rule 43-G were inapplicable to grants under Rule 43-J. We are thus in respectful agreement with the views expressed in Siddamma's case, supra. We, therefore, answer the question referred for opinion in the negative"

Smt. Hambamma vs State Of Karnataka And Others AIR 1998 Kant 91, ILR 1999 KAR 261, 1998 (3) KarLJ 688 Once the conditions stipulated in Rule 43-G cannot be applied to the grants under Rule 43-J as there is no power or authority to impose any condition stating that the land granted under Rule 43-J cannot be alienated for a period of 15 years or any other period. It is a settled principle of law that the delegate cannot exceed his power and he has only to act within the power conferred on him. Therefore, the condition imposed by the Tahsildar in the Saguvali Chit, at the time of issuing the same, that the grantee shall not alienate the land for a period of fifteen years, when such condition was not imposed by the order or the authority making the grant, cannot be sustained.

Smt. Hambamma vs State Of Karnataka And Others AIR 1998 Kant 91, ILR 1999 KAR 261, 1998 (3) KarLJ 688 The second question for consideration is what is the effect of the condition imposed by the Tahsildar at the time of issuing the Saguvali Chit. The granting Authority, as well as the Tahsildar, derive their power from Rule 43-J. When there is no power to impose any condition in the Saguvali Chit under Rule 43-J, at the time of grant, the subordinate authority, i.e., the Tahsildar has exceeded his limit in imposing the condition. The Tahsildar being the delegate, has no power to impose any condition in the Saguvali Chit. Even if such condition is imposed, the same is not valid in the eye of law and it is without power and jurisdiction. Therefore, the condition imposed by the Tahsildar in the Saguvali Chit stating that the grantee cannot alienate the land for a period of 15 years or any other period is not valid. In the absence of any such condition, it is open to the grantees to enjoy the land as they like, including the right to alienate the land.

Smt. Hambamma vs State Of Karnataka And Others AIR 1998 Kant 91, ILR 1999 KAR 261, 1998 (3) KarLJ 688 The learned Counsel for the original grantees contended that the grant is not under Rule 43-J, but it is under Rule 43-G. We have perused the orders of the original authority cancelling the grant and upholding the same by the Appellate Authority. Both the orders show that the grantees were in possession on temporary lease when they were granted the land by virtue of Rule 43-J; whereas for the grantees under Rule 43-C the unoccupied lands are given. Therefore, the grants involved in these cases are under Rule 43-J and therefore, we are not able to accept the contention of the original grantees. .. It is also contended that the State has collected the upset price from the grantees. Therefore, the grant has to be presumed under Rule 43-C and Rule 43-D and other sub-clauses. Government has taken a policy decision to grant the lands to temporary holders on a concessional price. After Rule 43-J is framed, such lands are granted to various persons and concessional price is collected. Merely because some price is collected, it cannot be said that the collection of upset price is not correct. The impugned grant is under Rule 43-G, when it was actually made under Rule 43-J. Even on this aspect, we do not see any force in the contention raised by the learned Counsel for the original grantees.

THIS ABOVE FULL BENCH DECISION IS OVERRULED BY SUPREME COURT IN AIR 2005 SC 4013 CLICK HERE TO READ IT

Smt. Siddamma v. Chikkegowda and Ors., 1991(1) Kar. L.J. 210 (DB) which was affirmed by a Division Bench in Siddamma's case, wherein law has been clearly stated that in respect of lands granted under the provisions of Section 43-J of the Mysore Land Revenue Code, 1888, no condition restricting alienation of the land could have been imposed; that any sale of such land can never be said to be in violation of the terms of the grant nor of any condition which in fact cannot be imposed by the authorities granting the land; that in spite of such sale transactions, the authorities under the Act does not assume jurisdiction for examination of an application under Section 4 of the Act.

Onkarappa vs Sanna Neelappa ILR 1990 KAR 727, 1990 (1) KarLJ 54 Another important aspect which requires to be noticed in these cases is that all these grantees were invested with possession anterior to the grand of lands made on 11-2-1960 by lease of lands to the grantees prior to 11-2-1960 under the "Grow More Food Scheme". Even though undue importance cannot be attached to possession given under the Grow More Food Scheme in the form of a lease, too much of emphasis on possession becomes superfluous in the context. At the risk of repetition, it has to be observed that what is relevant and germane to the issue is whether in all these cases alienation has taken place before the expiry of a period of ten years from the date of commencement of the grants. My opinion is that there is no violation of the condition imposed against alienation for a period of ten years. Computing the period from the date of the grant, it has to be held that in all these cases, alienation has taken place after the expiry of the period of ten years.

GROW MORE FOOD SCHEME LAND GRANT DOES NOT ATTRACT KPTCL PROVISIONS

Smt. Hambamma vs State Of Karnataka And Others AIR 1998 Kant 91, ILR 1999 KAR 261, 1998 (3) KarLJ 688 The erstwhile Government of Mysore introduced a Scheme, with the intention of improving the food production in the State issued an order dated 11-4-1942 (clarified by Act 13 of 1978) authorising the Deputy Commissioner to grant uncultivated land, to persons who are agriculturists, for a temporary period of not less than three years with option to purchase the same at reasonable upset price which will not exceed more than the amount prescribed therein. Thus number of persons, irrespective of the caste and creed were granted lease and in most of the cases their successors are in possession of such lands.

Mysore Cultivation of Fallow Lands Act, 1951

Mysore Cultivation of Fallow Lands Act, 1951 (Mysore Act No. XVII of 1951). By a perusal of the preamble of the Act, it is seen that it is with a view to bring fallow lands under cultivation in the State of Mysore except Bellary District, the provisions are made so as to enable landless to cultivate the lands subject to certain conditions. Sub-section (4) of Section 1 thereof makes it clear that the Act shall remain in force for a period of five years, and upon its expiry, the provisions of Section 6 of the Mysore General Clauses Act, 1899, shall be applicable as if it had been repealed by a Mysore Act. In other words, those persons who continued to cultivate the lands belonging to the Government under the said Act, even after the expiry of five years, shall continue to be lessees under the State of Karnataka. Therefore, even after the expiry of the period of five years, the right or interest accrued in such persons by virtue of the said Act cannot be taken away without due process of law. Section 12 of the said Act conferred upon the State Government power to make Rules for carrying out the purposes of that Act and in the absence of any Rules made thereunder, as long as their rights and interests are not taken away in accordance with law, they cannot be said to be persons who have lost their rights.

RELAVANCE OF SPOT INSPECTION REBUTING PRESUMPTION OF REVENUE ENTRY

Mohan Balaku Patil & Ors. vs Krishnoji Bhaurao Hundre AIR 1999 SC 1114, JT 1999 (1) SC 183, 1999 (1) SCALE 191 When in fact the Tribunal made local enquiry by spot inspection and had come to the conclusion that the appellants were in possession that factor should have weighed with the appellate authority, particularly in the face of the admission made by the respondent that the appellants had constructed the building on the land and were paying charges in respect of the electric pump set used for irrigating the land and ought to have held that the appellants were cultivating the land. In addition, the land in question was shown not to be cultivated by the respondent as the respondent was residing nowhere the land but at a far away place and that the land was not cultivated personally by the owner and the persons cultivating the land were not members of their family nor there was any evidence that the appellants were servants or hired labourers on wages and ought to have on that basis held the appellants as deemed tenant in respect of the land. The presumption arising under Section 133 of the Act in respect of the entries made in the record of rights stood displaced by the finding of fact recorded that the appellants were in actual possession of the land and were cultivating the same. In the face of such an admission made by the respondent it is difficult to accept the finding recorded by the appellate authority as affirmed by the High Court that in view of the entries made in the record of rights the appellants could not be stated to be in possession of the land on the relevant date nor was cultivating the same.

TENANCY UNDER LAND REFORMS

The Karnataka Land Reforms Act, 1961, came into force on 2-10-1965. The Act was in execution of the policy of agrarian reforms and was intended to give ownership of the land to the actual lawful tiller and to avoid absentee landlordism. Certain revolutionary amendments were made to the provisions of the Act by Act No. 1/1974, which came into force w.e.f. 1-3-1974. The Land Reforms Act so amended is relevant for the purpose of this case. According to the Land Reforms Act as amended, all agricultural lands which were under cultivation by the tenants as on the appointed date i.e. as on 1-3-1974 stand vested in the State Government under Section 44 of the Act, Section 45 of the Act provided for registering the tenants as occupants of the agricultural lands of which they were the tenants.

Section 2(34) of the Land Reforms Act defined the word 'tenant' reads:- "2(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; (ii) a person who was protected from eviction from any land by the Karnataka Tenants (Temporary Protection from Eviction) Act, 1961; (iia) a person who cultivates personally any land on lease under a lease created contrary to the 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.

2 (23) “permanent tenant” of the Land Reforms Act means a tenant who cultivates land personally,— (a) the commencement or duration of whose tenancy cannot satisfactorily be proved by reason of antiquity of such tenancy; or (b) whose name or the name of whose predecessor-in-title has been entered in the record of rights or in any public record or in any other revenue record as a permanent tenant; or (c) who by custom, agreement or the decree or order of a court holds the land on lease permanently; or (d) who holds land as mulgenidar, mirasdar or khata kul; and includes any person whose tenancy is under the provisions of any law presumed to be co-extensive with the duration of the tenure of the landlord;

Section 4 of the Land Reforms Act reads:- "4. Persons to be deemed tenants:- A person lawfully cultivating any land belonging to another person shall be deemed to be a tenant if such land is not cultivated personally by the owner and if such person is not - (a) a member of the owner's family, or (b) a servant or a hired labourer on wages payable in cash or kind but not in crop share cultivating the land under the personal supervision of the owner or any member of the owner's family, or (c) a mortgagee in possession:

Provided that if upon an application made by the owner within one year from the appointed day - (i) the Tribunal declares that such person is not a tenant and its decision is not reversed on appeal, or (ii) the Tribunal refuses to make such declaration but its decision is reversed on appeal, such person shall not be deemed to be a tenant."

Section 2(11) of the Land Reforms Act defines "to cultivate personally" as follows : Cultivate land on one's own account i) By one's own labour, or ii) by the labour of any member of one's family, or iii) by hired labour or by servants on wages payable in cash or kind but not in crop share, under the personal supervision of one self or by member of one's family.".

Preamble to the Karnataka Land Reforms Act would show that the said Act has been enacted to have uniform law relating to agrarian. Confirmation of ownership on tenant, ceiling of land holding and for certain other matters. Interpretation has to be in favour of the weaker sections of the society which would achieve the object in terms of the intentment of the legislation. 'Agriculture' has been defined so also 'agricultural labourer' in the Act. 'Tenant' has been defined to mean an agriculturist who cultivates personally the land he holds on lease from a landlord, and 'Agriculturist' has defined to mean a person who cultivates land personally. ……..

Crop-share is one mode of tenancy in agricultural operation. In ascertaining the status of a person as tenant, the mode of cultivation as shown in the Act becomes very relevant. There are in all, six modes, viz. (i) cultivated by holder himself, (ii) cultivated by hired labourer; (iii) tenant paying cash; (iv) share of crop; (v) fixed quantity of produce and (vi) proximity of aforesaid forms. It is true that burden of proving tenancy is upon the person who asserts it or who claims it.

Tenancy means relationship of landlord and tenant but in view of the peculiar and special provisions of Section 2(18) and Section 4, a person in possession may have no relation with the landlord in a given case but he, nevertheless, be called as tenant. The provisions show that a person who is merely in possession, lawfully of course, is also a tenant. Definition of "tenant" is divided into two parts - one contractual and the other statutory or who can be described for brevity's sake "deemed tenants". It could very well be visualised from the aforesaid provisions that "deemed tenant" or a statutory tenant means a person who lawfully cultivates any land belonging to another person if such person is not a member of the owner's family or a servant on wages payable in cash or kind but not in share or a hired labour cultivating the land under the personal supervision of the owner or any member of the owner's family or a mortgagee in possession. Section 4, therefore, far from defining a statutory tenant, raises a presumption of statutory tenancy in the circumstances provided therein. A presumption can be rebutted by showing not necessarily the exceptions provided in the section itself but by other circumstances also by showing that the person holding the land is not so holding in the capacity of a tenant but in some other position. The concept of "tenant" in the Tenancy Act is founded primarily on "land" and its "cultivation". The process of thinking embodied in Section 4 is primarily based on the "land" and its lawful cultivation and not merely cultivation. The cultivation must have its origin in some lawful act and that is why the section describes and not defines a deemed tenant, as one who is "lawfully cultivating any land belonging to another" that is to say, so cultivating any land in his own right and not on behalf of another. The expression "lawfully cultivating" would mean the same thing as cultivating "on one's own account" and for "one's own profit", in part or in full. The underlying purport and design behind Section 4 is to protect a lawful cultivator actively engaged in the act of raising the crops on the land or its major part though he may not be holding the land on lease in a traditional sense of the terms. The expression "lawfully cultivating" is now very well settled. It cannot exist without the concomitant existence of lawful relationship which can be proved even without the formal proof of a traditional form of lease.

The Concise Oxford Dictionary, (Vth Edition 1964) defines 'agriculturist' at page 26 under the term 'agriculture' as follows; "Cultivation of the soil. Hence agricultural, agriculturist." In other words the meaning to' be attached to the term 'agriculturist' is the person who cultivates the soil.

The term has been legally defined under the Karnataka Land Reforms Act to mean a person who cultivates land personally. 'To cultivate' with Its grammatical variations and cognate expressions means to till or husband the land for the purpose of raising or improving agricultural produce whether by manual labour or by means of cattle or machinery, or to carry on any agricultural operation thereon; and the expression 'uncultivated' shall be construed correspondingly.

TENANT UNDER MYSORE LAND REVENUE CODE 1888

LAND REVENUE CODE 1888 SECTION 79. Amount of rent payable by tenant. A person placed, as tenant, in possession of land by another, or, in that capacity, holding, taking or retaining possession of land permissively from or by sufferance of another, shall be regarded as holding the same at the rent, or for the services, agreed upon between them; or, in the absence of satisfactory evidence of such agreement of the rent payable or services renderable by the usage of the locality, or, if there be no such agreement or usage, shall be presumed to hold at such rent as, having regard to all the circumstances of the case, shall be just and reasonable. And, where, by reason of the antiquity of a tenancy, no satisfactory evidence of its commencement is forthcoming, and there is not any such evidence of the period of its intended duration, if any, agreed upon between the landlord and tenant, or those under whom they respectively claim title, or any usage of the locality as the duration of such tenancy, it shall, as against the immediate landlord of the tenant, be presumed to be co-extensive with the duration of the tenure of such landlord and of those who derive title under him.

Explanation. In the following cases, such a presumption shall be raised.

(1) where the tenant has been recognised as a permanent tenant by the landlord or by a Court in a suit to which the landlord was a party;

(2) where a tenant holds land in respect of which any alienation has been recognised by the landlord or by a Court in a suit to which the landlord was a party or where the alienation has not been contested by the landlord for twelve years from the date of the service of notice of alienation to the landlord;

(3) where for the better cultivation of the holding the tenant has made permanent improvements thereon to the knowledge of the landlord and has been in undisturbed possession of the holding continuously for twelve years thereafter: provided that the landlord has made no contribution for such improvements nor recovered enhanced rent from the tenant nor given any notice in writing to the tenant that such improvements would not create any new rights;

(4) where, in the absence of a contract regarding the nature and duration of the tenancy, the tenant has established that he has been in continuous possession on payment of fixed rent for a period of twelve And where there is no satisfactory evidence of the capacity in which a person in possession of land in respect of which he renders service or pays rent to the landlord, receives, holds or retains possession of the same, it shall be presumed that he is in possession as tenant. Nothing contained in this section shall affect the right of the landlord (if he have the same either by virtue of agreement, usage or otherwise) to enhance the rent payable, or services renderable, by the tenant, or to evict the tenant for non-payment of the rent or non-rendition of the services, either respectively originally fixed or duly enhanced as aforesaid.

ENTRY IN REVENUE RECORD CANNOT BE REBUTED BY MERE STATEMENT

Karewwa And Ors. vs Hussensab Khansaheb Wajantri AIR 2002 SC 504 (2002) 10 SCC 315 We do not dispute the legal position as stated by the learned counsel for the appellant, but the presumption of correctness of an entry in revenue record cannot be rebutted by a statement in the written statement. Mere statement of fact in the written statement is not a rebuttal of presumption of correctness of an entry in the revenue record. The respondent was recorded as a tenant in the revenue record in the year 1973 and under law the presumption is that the entry is correct. It was for the appellant to rebut the presumption by leading evidence. The appellant has not led any evidence to show that entry in the revenue record is Incorrect. We, therefore, do not find any merit in the contention.

LAND ACQUISITION – INCREASE IN LAND PRICES – HOW HIGHER RATES ADOPTED

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Manager, Oil and Natural Gas Corporation Ltd. Vs. Rameshbhai Jivanbhai Patel and Anr 2008(11) SCR927 Primarily, the increase in land prices depends on four factors: situation of the land, nature of development in surrounding area, availability of land for development in the area, and the demand for land in the area. In rural areas, unless there is any prospect of development in the vicinity, increase in prices would be slow, steady and gradual, without any sudden spurts or jumps. On the other hand, in urban or semi-urban areas, where the development is faster, where the demand for land is high and where there is construction activity all around, the escalation in market price is at a much higher rate, as compared to rural areas. In some pockets in big cities, due to rapid development and high demand for land, the escalations in prices have touched even 30% to 50% or more per year, during the nineties. ……. On the other extreme, in remote rural areas where there was no chance of any development and hardly any buyers, the prices stagnated for years or rose marginally at a nominal rate of 1% or 2% per annum. There is thus a significant difference in increases in market value of lands in urban/semi-urban areas and increases in market value of lands in the rural areas. Therefore, if the increase in market value in urban/semi-urban areas is about 10% to 15% per annum, the corresponding increases in rural areas would at best be only around half of it, that is, about 5% to 7.5% per annum. This rule of thump refers to the general trend in the nineties, to be adopted in the absence of clear and specific evidence relating to increase in prices. Where there are special reasons for applying a higher rate of increase, or any specific evidence relating to the actual increase in prices, then the increase to be applied would depend upon the same. ……. Normally, recourse is taken to the mode of determining the market value by providing appropriate escalation over the proved market value of nearby lands in previous years (as evidenced by sale transactions or acquisitions), where there is no evidence of any contemporaneous sale transactions or acquisitions of comparable lands in the neighbourhood. The said method is reasonably safe where the relied-on sale transactions/acquisitions precede the subject acquisition by only a few years, that is, up to four to five years. Beyond that it may be unsafe, even if it relates to a neighbouring land. What may be a reliable standard if the gap is of only a few years, may become unsafe and unreliable standard where the gap is larger. For example, for determining the market value of a land acquired in 1992, adopting the annual increase method with reference to a sale or acquisition in 1970 or 1980 may have many pitfalls. This is because, over the course of years, the "rate" of annual increase may itself undergo drastic change apart from the likelihood of occurrence of varying periods of stagnation in prices or sudden spurts in prices affecting the very standard of increase.”

WHEN LAND ACQUISITION AMOUNTS TO FRAUD 2011 SC

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JUSTICE G.S. Singhvi, JUSTICE Sudhansu Jyoti Mukhopadhaya of Supreme Court of India in M/S. Royal Orchid Hotels Ltd & Anr. vs G. Jayarama Reddy & Ors. on 29 September, 2011 held that “The Courts have repeatedly held that in exercise of its power of eminent domain, the State can compulsorily acquire land of the private persons but this proposition cannot be over-stretched to legitimize a patently illegal and fraudulent exercise undertaken for depriving the landowners of their constitutional right to property with a view to favour private persons. It needs no emphasis that if land is to be acquired for a company, the State Government and the company is bound to comply with the mandate of the provisions contained in Part VII of the Act. Therefore, the Corporation did not have the jurisdiction to transfer the land acquired for a public purpose to the companies and thereby allow them to bypass the provisions of Part VII. The diversification of the purpose for which land was acquired under Section 4(1) read with Section 6 clearly amounted to a fraud on the power of eminent domain.”

LAND ACQUISITION SHALL NOT IMPAIR SOCIAL JUSTICE

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Justice G.S. Singhvi, and Justice Asok Kumar Ganguly in Dev Sharan v. State of U.P., (2011) “The Courts must examine these questions very carefully when little Indians lose their small property in the name of mindless acquisition at the instance of the State. If public purpose can be satisfied by not rendering common man homeless and by exploring other avenues of acquisition, the Courts, before sanctioning an acquisition, must in exercise of its power of judicial review, focus its attention on the concept of social and economic justice. While examining these questions of public importance, the Courts, especially the Higher Courts, cannot afford to act as mere umpires. In this context we reiterate the principle laid down by this Court in Authorised Officer, Thanjavur and another vs. S. Naganatha Ayyar and others reported in (1979) 3 SCC 466, wherein this Court held: “......It is true that Judges are constitutional invigilators and statutory interpreters; but they are also responsive and responsible to Part IV of the Constitution being one of the trinity of the nation's appointed instrumentalities in the transformation of the socio- economic order. The judiciary, in its sphere, shares the revolutionary purpose of the constitutional order, and when called upon to decode social legislation must be animated by a goal-oriented approach. This is part of the dynamics of statutory interpretation in the developing countries so that courts are not converted into rescue shelters for those who seek to defeat agrarian justice by cute transactions of many manifestations now so familiar in the country and illustrated by the several cases under appeal. This caveat has become necessary because the judiciary is not a mere umpire, as some assume, but an activist catalyst in the constitutional scheme”

HOW TO KNOW TENANCY IN AGRICULTURAL LAND BEFORE TRIBUNAL

Justice G G Bhat in Thunga Bai And Ors. vs Vishalakshi Heggadthi And Anr. ILR 1975 KAR 739, 1974 (2) KarLJ 484 The Karnataka Land Reforms Act, 1961, (hereinafter called the Act) came into force on 2-10-1965. The object of the said Act, inter alia, is to terminate the relationship of landlord and tenant and to confer ownership rights on the tenants. Landlords are prohibited from evicting their tenants. Section 14 of the Act permitted resumption subject to the terms and conditions laid down therein. Section 14 has now been deleted by the Karnataka Amendment Act No. 1 of 1974. Section 25 provides for surrender of lands held by a tenant. The said section, before it was amended by Karnataka Amendment Act No. 1 of 1974 read thus: "25 Surrender of land by tenant:-- (1) No tenant shall surrender any land held by him as such, and no landlord shall enter upon the land surrendered by the tenant, without the previous permission in writing of the court. (2) Permission under Sub-section (1) shall be granted if, after making such inquiry as may be prescribed, the court is satisfied that the proposed surrender is bona fide and the land surrendered does not exceed the extent of land which landlord could have resumed from his tenant under Section 14; in other cases, the permission shall be refused....." By Section 25 a bar was imposed against surrender of any land held by a tenant without the previous permission in writing of the 'court'. The Court can grant permission after making enquiry if it is satisfied that the proposed surrender is bona fide and the land surrendered does not exceed the extent of land which the landlord could have resumed from his tenant under Section 14. The section further barred the landlords from entering upon the land surrendered by their tenants without the previous permission in writing obtained from the Court. Thus there is a prohibition against surrender of any land by a tenant and a further prohibition against the landlord from entering upon the land surrendered by the tenant, without the previous permission in writing of the Court.

Justice G G Bhat in Thunga Bai And Ors. vs Vishalakshi Heggadthi And Anr. ILR 1975 KAR 739, 1974 (2) KarLJ 484 When Govinda Naika and Badiya Naika were admittedly the tenants of the suit lands up to 1971 when the Act was in force and there has been no sur-render by them under Section 25 which alone can be taken cognisance of by the Courts, the Court below should have drawn the legal presumption that their possession has continued. In order to obtain the relief of injunction it was not necessary for the plaintiffs to produce documents showing that their possession continued even after 1971. The possession of the suit lands in the eye of law always remained with the tenants. The entry of defendant 1 on the suit lands is prohibited by Section 25(1) of the Act. That prohibition is an injunction against landlords not to enter upon the lands held by tenants without the previous permission in writing of the Court. Each entry by defendant 1 upon the suit lands constitutes an act of trespass and a clear invasion of the legal rights of the plaintiffs. When the plaintiffs have shown that they have a legal right and that legal right is invaded by the unlawful acts of the defendants, they are entitled to the relief of injunction at the hands of the Civil Court.

Justice D Chandrashekhar, Justice P Bopanna in Puttegowda v. State of Karnataka and Ors., AIR 1980 Kant 102, ILR 1980 KAR 160, 1980 (1) KarLJ 281 wherein it was held that.- "Mere permission to surrender without delivery of possession by the tenant does not put an end to the relationship of landlord and tenant. Delivery of possession by the tenant to the landlord and his acceptance of possession are essential to effect the surrender. Where it was not proved that the tenant had delivered possession of the land notwithstanding grant of permission to surrender, but was found to be in possession even after the grant of permission to surrender, held that he continued to be a tenant and was entitled to grant of occupancy right".

Justice Mohan Shantanagoudar, Vasantha Nanasaheb Pawar And Ors. vs Piraji Pandu Patil ILR 2006 KAR 2061, 2006 (3) KarLJ 172 In support of his case, the tenant has examined two independent neighbouring witnesses apart from examining himself. Both the said witnesses have deposed in categorical terms that 1st respondent herein is cultivating the property in question as tenant. Though they are cross-examined by the landlords, nothing worth is elicited in their cross-examination so as to discard their evidence, Thus, the evidence of the neighbouring witnesses fully supports the case of the tenant 1st respondent herein. ………………………………….. Merely because the revenue entries stand in the name of the petitioners would not mean that there is no relationship of landlords and tenant between the parties. The revenue entries do not take away the established case of the 1^st respondent The presumption arising out of the revenue records stand rebutted in view of consistent, cogent and clinching evidence relating to the 1st respondent's possession over the property in question as a tenant……………….. No neighbouring land holders are examined by the land lords on their behalf. The said admissions by BW-1 would amply make it clear that they are absentee land owners and that they have never cultivated the land In question.

Justice H Narayan, Hanumanthappa Gonappa Talwar vs The Special Deputy Commissioner 1998 (1) KarLJ 683 It is now settled by the ruling of these decisions that whether an application of the tenant filed in Form 7 is rejected or whether an order of the Tribunal holding that a particular applicant is not a tenant, it is the duty of the Tribunal to give a finding whether the particular land is a tenanted land or not as on the date of coming into force of the Act, that is the legally vesting and that determines the nature of the land.

PROCEDURAL AND LEGAL ASPECTS OF LAND REVENUE RECORD ENTRY IN KARNATAKA


Karnataka Land Revenue Act Section 128 (4) : Acquisition of rights to be reported: 4. No document by virtue of which any person acquires a right in any land as holder, occupant, owner, mortgage, landlord or tenant or assignee of the rent or revenue thereunder, shall be registered under the Indian Registration Act, 1908 unless the person liable to pay the registering authority such fees as may be prescribed for making the necessary entries in the record of rights and registers referred to in Section 129; and, on the registration of such a document, the registering authority shall make a report of the right to the prescribed officer.

Section 129 (2) Whenever a prescribed officer makes as entry in the Register of Mutations, he shall at the same time post up a complete copy of the entry in a conspicuous place in the chavadi and shall give written intimation to all persons appearing from the Record of Rights or Register of Mutations to be interested in the mutation, and to any other person whom he has reason to believe to be interested therein.

Section 129 (6) Entries in the Register of Mutations shall be tested and if found correct or after correction, as the case may be, shall be certified by such officer as may be prescribed.

Section 129 (7) The transfer of entries from the Register of Mutations to the Record of Rights shall be effected in the prescribed manner, provided that any entry in the Register of Mutations shall not be transferred to the Record of Rights until such entry has been duly certified.


Justice R Jois, Justice Ramakrishna in  Srimanmaharaja Niranjana Sri Murugharajendra Bruhan Mutt of Chitradurga vs Deputy Commissioner  ILR 1986 KAR 1059, 1986 (1) KarLJ 373 “Chapter XI of the Act,(Karnataka Land Revenue Act)  which regulates the making of the entry in the Record of Rights. Section 127 of the Act deals with the preparation of record of rights according to the prescribed procedure. According to Sub-section (3) of Section 127 of the Act, the record of rights so prepared and completed in respect of any village is required to be published in the Official Gazette in such manner as may be prescribed. In other words, this provision relates to the preparation of record of rights in the first instance under the provisions of the Act. Section 128 of the Act provides for reporting of the acquisition of rights in respect of lands covered by the provisions of the Act. Therefore, whenever any person acquires the right to any landed property for which the Act applies from its original owner by lease, mortgage, gift, purchase etc., the said Section provides for reporting of such acquisition of rights and for receiving it by the authority specified on payment of prescribed fee. Section 129 prescribes the procedure for registration of mutations reported under Section 128. Sub-section (1) of Section 129 of the Act provides for making an entry in the register of mutations of every report made to him under the provisions of Section 128 of the Act. Sub-section (2) of Section 129 of the Act provides for publication of a copy of the entry so made as also for giving written intimation to all persons interested, as disclosed in the revenue records. If there were to be any objections,, Sub-section (3) requires the prescribed officer to enter the particulars of the objection in the register of disputed cases. Sub-section (4) of Section 129 of the Act empowers the prescribed authority to decide the disputes following the procedure as prescribed under Sub section (5). Subsection (6) of Section 129 of the Act provides for making an entry and certifying the entry relating to mutations in accordance with the order made after such inquiry. Sub-section (7) of Section 129 provides for transfer of certified entries made in the register of mutations to the record of rights. Section 135 of the Act bars the jurisdiction of the Civil Courts in respect of an order made under any of the provisions of the Chapter against the Government. The proviso under the said provision, however, provides that a person aggrieved by any entry made in any record or register may institute a suit against any person denying or interested in denying his title to such right and also provides that the entries in the record of right shall be amended in accordance with any declaration granted by the Civil Court.”

Justice H.V.G. Ramesh, in  Mahadevappa And Ors. vs State Of Karnataka ILR 2008 KAR 1750 It is high time to intimate the Revenue Department and the concerned Department to meticulously follow the procedure as provided under Section 128 & 129 of the Karnataka Land Revenue Act and also it should be made mandatory as a matter of responsibility on the part of the Government to save the public from the precarious situation and also there shall be timely action by the revenue authorities without there being any delay on their part in making entries in the mutation register and other registers in the revenue office and in the Corporation/Municipality in city limits to avoid future complications. ……. Government Pleader to communicate this order to the Government and the Government in turn shall direct Secretary to Revenue Department to circulate this order in the department to follow the procedure as provided under Section 128 & 129 of the Land Revenue Act for due compliance and taking follow up action. For such non-compliance by the concerned Revenue Authorities, the Department shall prescribe some norms to initiate action.

Bhimappa Channappa Kapali ... vs Bhimappa Satyappa Kamagouda ILR 2002 KAR 3055, 2003 (2) KarLJ 148 Bench Justice  N Jain, Justice N Kumar, “The entry in the RTC is made during the pendency of the legal proceedings initiated by Shivawwa for cancellation of the gift deed and more so it is on the basis of a collusive vardhi, as such the said entry would not give rise to any presumption. That apart she submitted that before an entry is made in the RTC in the name of the deceased appellant, the procedure prescribed in law under Sections 128 and 129 of the Land Revenue Act has not been followed, as such no presumption would arise under Section 133 of the said Act…… Any person who does not lawfully enter on the land of another and cultivate the same cannot claim the status of a deemed tenant under Section 4 of the Act. Though, in the case of Dahya Lala, supra, the Hon'ble Supreme Court held it is not the condition that the applicant must cultivate land with the consent or under the authority derived directly from the owner, to import such a condition is to rewrite the section, and destroy its practical utility, a person who derives his right to cultivate land from the owners would normally be a contractual tenant and he will obviously not be a "deemed tenant". Persons such as licensees from the owner may certainly be regarded as falling within the class of persons lawfully cultivating the land belonging to others, but it cannot be assumed therefrom that they are the only persons who are covered by the section. A tenant lawfully inducted by a mortgagee shall on redemption of the mortgage be deemed to be a tenant under the mortgagor…."Lawfully cultivating" must have some foundation in a legal right to cultivate the property. Lawful cultivation cannot Be established without concomitant existence of a lawful relationship. Lawful cultivation must have origin in a legal right to cultivate the property. In the absence of any such right to cultivate, it cannot be said that merely because a person is cultivating the land he is held to be in lawful cultivation. A person who cultivates the land against the wishes of the owner cannot be said to be in lawful cultivation. Merely because no action is taken against him and he has continued to cultivate for a considerable period of time would not make his cultivation lawful. The essence of lawful cultivation is that one should enter possession of the land under some colour of right and cultivate the land as a matter of right, otherwise it cannot be said that he is in lawful cultivation of the land in question. Therefore, in the absence of any legal right a person who is cultivating the land cannot claim a status of deemed tenant under Section 4 of the Act.

In Jayamma v. Maria Bai Dead by proposed L.Rs. and Another [(2004) 7 SCC 459], this Court has held that when an assignment or transfer is made in contravention of statutory provisions, the consequence whereof would be that the same is invalid and thus opposed to public policy………….

CASE LAW ON LAND LAWS

KARNATAKA LAND LAWS