State Of Karnataka vs Y.Moideen Kunhi(D) By Lrs. . on 27 April, 2020


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Supreme Court of India

State Of Karnataka vs Y.Moideen Kunhi(D) By Lrs. . on 27 April, 2020

Author: Deepak Gupta

Bench: Deepak Gupta, Aniruddha Bose

                                       NON-REPORTABLE
               IN THE SUPREME COURT OF INDIA
                CIVIL APPELLATE JURISDICTION

            CIVIL APPEAL NOS.4499-4501 OF 2010


STATE OF KARNATAKA                                    ...APPELLANT


                               VERSUS


Y. MOIDEEN KUNHI (D) BY LRS. & ORS.                ...RESPONDENTS


                            JUDGMENT

ANIRUDDHA BOSE, J.

The State of Karnataka is in appeal before us primarily assailing

a common judgment of the High Court of Karnataka delivered on 7th

November, 1990 confirming a decision of the Tribunal under the

Karnataka Land Reforms Act, 1961 treating a large part of an estate

held by the respondents as plantation land. The effect of such treatment

would be that such land under plantation would be exempted from the

restrictions on holding imposed under that statute. Such exceptions

have been laid down under the provisions of Section 104 of the said
1
Act. The dispute involved in this appeal originated from a declaration

filed by three individuals, being Y. Moideen Kunhi (in some documents

referred to as Noideen Kunhi), Y. Mohammed Kunhi and Y. Abdulla

Kunhi under Section 66(4) of the said Act on 5th December, 1975. As

would be evident from the copy of a sale deed made annexure “P-I” to

the Special Leave Petition, the subject land was purchased by Y.

Mohideen Kunhi and Company, a registered partnership firm by the

said deed registered on 24th January, 1957 for a consideration of Rs.

2,75,000/-. From this deed, it appears that the property was known as

“NERIYA CARDAMOMS ESTATE”. The particulars of such land

and its user status would appear from the schedule to the said deed.

The relevant extract thereof we are reproducing below:-

“THE TOTAL ACREAGE IN THE ABOVE SCHEDULE:

PRICE (RS.)

1. Cardamom Planted area 50.89 acres 25,000-00

2. Coffee area inter-planted with 30.00 acres 10,000-00
orange-young-not yield about

3. Paddy Punam Cultivation 462.00 acres 20,000-00
(Kumri)

2
55,000-00

4. Buildings:- 20,000-00
The residential Buildings-tiled
One Smoke house-tiled
One set coolly line-tiled
Shed and Wall Masonary

5. Forest Area; 3485.83 acres Rs.2,75,000-

          Consisting of partially cleared                   00”
          and un cleared area
                                                       (quoted verbatim)

2. The declaration under Section 66 of the Act was made by the

aforesaid three individuals before the Tahsildar (Land Reforms),

Belthangady Taluk. The declaration referred to properties situated in

different Taluks, including the estate in Neria village, Belthangady

Taluk in South Kanara district. In the “Remarks” column of the

declaration, there was disclosure to the effect that though the subject-

lands were classified as “dry”, the same were being used for plantation

purpose. The Land Tribunal at Belthangady considered a spot

inspection report dated 25.8.1982 carried out by the Special Tahsildar,

which found that out of the whole estate, Cardamom plantation was

covering 2500 acres, rubber plantation covered 220 acres and 100 acres

was covered by coco. The declarants had claimed exemption of 635.60

3
acres of land, as Rocks and hill slope, Road, streams and river,

buildings and area not covered by plantations. This inspection was

followed by another spot inspection by the Land Tribunal at

Belthangady carried out on 10th September 1982 before the Tribunal

gave its decision. A copy of this report has been made annexure “P-5”

to the special leave petition. This report records that 2500 acres of land

was covered by cardamom cultivation and 100 acres of land was

covered by rubber cultivation, so far as plantation lands were

concerned. A revised order bearing No. LRY 167/74-75 was issued on

16th September 1982 to the following effect:-

“The declaration filed by the declarents, the sketch of
the surveyor, the spot inspection report of Land
Tribunal Secretary and available other relevant
records have been perused. The Chairman and the
members of the Tribunal after conducting spot
inspection opined that the declarents after exempting
are holding 530.16 acres of D class agricultural land
and as per their eligibility 162 acres of D class land is
to be in their possession and remaining 368.16 acres
of D class land or its equivalent land are ordered as
surplus land under section 67(1) of Karnataka Land
Reforms Act, and to surrender the Same to Govt.
under Section 67(2). The special Tahsildar to take
further action in the matter. The decision of the
Tribunal is unanimous.”
(quoted verbatim)

4

3. Learned counsel for the appellant has brought to our notice

another order of the Land Tribunal, Madikeri (annexure “P3”) in which

declarations were filed under Section 66 (in form no. 11) by the wives

of the said three individuals along with certain other persons. There is

reference in this order, dated 24th August 1982, to the pending

declaration before the Tribunal at Belthangady.

4. There was a review of the said order of the Land Tribunal at

Belthangady passed on 16th September 1982. In the review order dated

10th November, 1982 majority of the members confirmed the earlier

order, with the Chairman of the Tribunal giving dissenting note. The

said order is reproduced below:-

“In the above case the Land Tribunal Belthangady
after examining the declarations filed by Sri Y.
Mohiyuddeen Kunhi, Y. Mohammed Kunhi and Y.

Abdul Kunhi under Sec. 66 of KLR Act ordered that
declarants were eligible to hold only 62.00 acres of D
Class land and remaining 368.16 acres of land were
declared excess land under sec.67(1) of KLR Act on
27.9.82. In the later stage it has come to the notice of
the concerned authorities that Land Tribunal erred
while considering the case. The Land Tribunal
committed mistakes misconceiving the facts while
issuing judgment on 27-9-82. Hence in order to
rectify the errors, this case was re-examined under
section 122 ‘A’ of KLR Act. The declarents have

5
been given opportunities and finally examined on 10-
11-1983.

Sri Y.Abdul Kunhi, one of the declarnats, has
appeared before the Land Tribunal and given written
statement. He has also given explanations to series of
queries raised by Land Tribunal. He has explained
that land purchased on 24-1-57 by M/s. Y.M.K. & Co.
is entirely plantation land. The declarents failed to
prove that land purchased by the company is
plantation land. Hence arguments of the declarents
that declarents may be exempted under Sec.104 of
KLR Act and Sec. 66 not applicable is unjustifiable.
It is also of the opinion that the case attracts Sec.66
and to be dealt by Deputy Commissioner under sec.
79 B of KLR Act. Hence
Majority Judgment
The orders of Land Tribunal dated 16-9-82 and
27-9-82 is as per law. Before issuing this order Land
Tribunal examined the witnesses and inspected the
land in question. During inspection of land it is
noticed by Land Tribunal that land belonging to
declarants are covered by plantation crop like Rubber
and coco. Extent of land used for road, road margin,
river streams and buildings are excluded while
determining excess land. Ultimately after
considering all these factors 368.16 acres of land
found excess. The declarants have given entire
information of the land in their declaration. They
have not given false information or hide any reality.
This case to be dealt under section 104 of KLR Act
and hence sec.79B is not applicable. The Land
Tribunal has got authority to review and reconsider
the case only in such cases wherein declarants have
given incomplete and false information in their
declaration. But here declarants have given correct
information about land in question. Hence in this
6
majority judgment we resolve that for no reason this
case shall be reviewed.

This judgment is pronounced in this open court on
10.11.1982 under sec.122A of KLR Act.

Sd/-

Sd/-

Sd/-

Sd/-

Chairmans’ Minority Judgement

The declarants represents a partnership firm. Hence
these case cannot be considered under sec.66 of KLR
Act. Their declarations are to be examined by Deputy
Commissioner under section 79B of KLR Act. As
explained in the preamble, Land Tribunal
misconceived the facts and misled by the incomplete
information given by the declarants. Hence it is right
to review, Land Tribunal’s orders dated 27-9-82
under Section 122A of KLR Act. It is hereby ordered
to submit this case to Deputy Commissioner.”
(quoted verbatim)

5. The State’s contentions are that the estate having been purchased

by a firm and a large portion of the estate being forest land, declaration

under Section 66 of the Act was not the proper course to be followed

for ascertaining the position of the land vis-à-vis the ceiling limit as

contemplated under the 1961 Act. The stand of the State is that the

7
status of such land should have been dealt with in terms of the

provisions of Sections 79A and 79-B of the 1961 Act. Both the State

and the estate owners, who are represented before us approached the

High Court of Karnataka invoking its constitutional writ jurisdiction

seeking invalidation of the Tribunal’s order or part thereof.

6. The case of the State of Karnataka was registered as Writ Petition

(C) No.10920 of 1983 whereas the declarants’ writ petition was

registered as Writ Petition No. 40425 of 1982. The declarants’ case was

that they were in possession and enjoyment of a total extent of 4040

acres and 95 cents and if out of that total land, deduction was permitted

in respect of area covered under plantation, land under tenants with

occupancy right and interspersed land, their holding would be within

the ceiling limit. The State’s argument has been summarised in

paragraph 4 of the judgment of the Karnataka High Court delivered on

7th November, 1990. By this judgment, both the writ petitions had been

dealt with. The said passage from that judgment reads –

“4. Likewise the State aggrieved by the order of the
Tribunal at Annexure-B filed Writ Petition no.10920
of 1983 contending that the Tribunal was not right in
placing reliance on the report of the Secretary to the

8
Tribunal to arrive at the actual holdings of the
declarants. Secondly, in all fairness the Tribunal
should have served a notice on the Government
before taking the decision on the total holdings of the
declarants. Thirdly, the Tribunal erred in not taking
into consideration that the petitioners are not entitled
to claim separate 10 units each on the date of filing
their declaration as they were the partners of the firm.
Further, the Tribunal erred in not taking into
consideration that the firm as such is not entitled to
hold any land as under Section 79-A of the Land
Reforms Act, there is a prohibition. The learned High
Court Government Pleader also contended that the
Tribunal erred in incorrectly excluding the land
alleged to have been covered under the planation
without giving an opportunity to the State to find out
whether the lands are covered under the planation or
otherwise. For these reasons, the State also submits
that the order of the Tribunal may be quashed.”
(quoted verbatim)

7. The High Court found the State’s case to be without any merit.

The reason for this, as observed in the judgment under appeal, was that

correct classification was made by the Tribunal on the basis of the

report submitted by the Secretary/Tahsildar who was a responsible

officer for the State.

8. As regards contention of the State that the provisions of Section

79-B of the 1961 Act would be applicable, it was negated by the High

Court with the following reasoning:-

9

“……the next contention that in view of section 79-

B of the Act the declarants are not entitled to hold any
land is also incorrect. They claimed the lands not as
partners, but in their personal capacity……”
(quoted verbatim)

Further observation of the High Court was that in proceeding

under Article 226 of the Constitution, the Court was not to investigate

into disputed question of facts. The writ petition of the declarants was

dismissed as withdrawn and the State’s writ petition was dismissed.

9. The State took out a petition for review of the said judgment in

the year 2004. Before the Review Court, the State had stressed on

applicability of Section 79-B of the 1961 Act but this plea was rejected

by the Review Court. It was held by the Review Court that definition

of land under Section 2(18) of the Act included forest land and

plantation land. Referring to Section 104 of the Act, the Review Court

observed:-

“Section 2(18) of the Act defines the word “land”.

The said definition is comprehensive definition. The
“land” includes forest land and plantation land. It is
clear from provisions of Section 79-A and 79-B and
Section 80 shall not apply to plantation lands. The
explanation to Section 104 of the Act further denotes
that the plantation means the land used by a person
principally for the cultivation of plantation crop or for
10
any purpose ancillary to the cultivation of such crop
or preparation of the same for the market, and
agricultural land interspersed with the boundaries of
the area cultivated with such crop. Thus, it is not
mandatory for the holder of the plantation lands to file
application under Section 79-B of the Act, though the
purchaser of the lands is a firm or company.”
(quoted verbatim)

10. There are, in fact, three appals by the State of Karnataka. In two

appeals, common judgment of the Single Judge of the Karnataka High

Court delivered on 7th November 1990 dismissing both the writ

petitions are assailed. The judgment of the High Court delivered in the

Review Petition on 26th September, 2007 has also been challenged

before us in the third appeal. Before the Review Court, plea of fraud on

the part on the declarants and also the Tahsildar was asserted by the

State. This plea was rejected by the Review Court and the Review

Court came to the conclusion that finding of fact was given by the final

fact-finding authority, being the Tribunal, and there was no scope of

further interference by the writ court. From the judgment of the Review

Court, we find that point was taken by the State that the estate was

purchased by a firm but declaration of holding under Section 66 was

given by three individuals. But the Review Court did not find any flaw

11
in such exercise being undertaken by the individual declarants. On the

other hand, the declaration filed under Section 66 of the 1961 Act was

found to be valid for the reason that it was not the firm who had filed

the declaration but three persons in their individual capacity.

11. For proper appreciation of the controversy involved in this appeal,

it would be necessary to refer to the following provisions of the 1961

Act:-

(a) “2(18). “land” means agricultural land, that
is to say, land which is used or capable of
being used for agricultural purposes or
purposes subservient thereto and includes
horticultural land, forest land, garden land,
pasture land, plantation and tope but does
not include house-site or land used
exclusively for non-agricultural purposes;

x x x

66. Filing of declaration of holding.- (1) (a)
Every person who on the date of
commencement of the Amendment Act
holds,—

(i) ten acres or more of lands having
facilities for irrigation from a source of
water belonging to the State Government;

or

12

(ii) twenty acres or more of lands on which
paddy crop can be grown with the help of
rain water; or

(iii) forty acres or more of lands classified
as dry but not having any irrigation
facilities from a source of water belonging
to the State Government,
shall on or before the 31st day of
December 1974];

(b) every person who acquires land in excess
of the extent specified in clause (a) in any
manner referred to in section 64; and

(c) every person whose land is deemed to be
in excess of the ceiling area under section
65-A
,
shall, within the prescribed period, furnish a
declaration to the Tahsildar within whose
jurisdiction the holding of such person or the
greater part thereof is situated containing the
following particulars, namely:—

(i) particulars of all the lands;

(ii) particulars of the members of the
family; and

(iii) such other particulars as may be
prescribed.

13

(1-A) Where a person holds different
categories of land mentioned in clause (a) of
sub-section (1), the total extent of lands held
by such person shall, for purposes of this
section, be determined by converting all
categories of land into any one category in
accordance with the following formula,
namely:—
One acre of land referred to in category (i) =
two acres of land referred to in category (ii)
= four acres of land referred to in category

(iii).

(2) Without prejudice to the provisions of
sub-section (1), the Tahsildar shall have
power to issue notice requiring any person
who he has reason to believe, holds land, or
resides within his jurisdiction to furnish to
him a declaration of all lands held by him
within such period as may be specified in the
notice (not being less than thirty days from
the date of service of the notice), and it shall
be the duty of such person to furnish the
declaration.

(3) Every declaration furnished under sub-
section (1) or sub-section (2), shall be in the
prescribed form; and the person furnishing
the declaration shall be entitled to obtain a
receipt therefor.

(4) Notwithstanding anything contained in
sub-section (1), every person who had held
on or after 18th November 1961 and before
the commencement of the Amendment
Act
,—
14

(a) ten acres or more of lands having
facilities for irrigation from a source of
water belonging to the State
Government; or

(b) twenty acres or more of lands on
which paddy crop can be grown with the
help of rain water; or

(c) forty acres or more of lands other than
those specified in clauses (a) and (b),
shall in respect of the land so held by
him also furnish a declaration within
one hundred and eighty days from the
eleventh day of September 1975 to the
Tahsildar within whose jurisdiction the
holding of such person or a greater part
thereof is or was situated containing the
following particulars, namely,—

(i) particulars of the land;

(ii) particulars of the members of
his family;

(iii) particulars of lands transferred
or disposed of in any manner prior
to 24th January 1971 and
subsequent to that date;

(iv) particulars of the persons to
whom lands if any, have been
transferred or disposed of;

(v) such other particulars as may be
prescribed.

15

(5) The provisions of sub-sections (1A), (2) and (3)
shall mutatis mutandis apply to the declarations to be
furnished under sub-section (4).

xxxxxx

(b) The Karnataka Land Reforms Act underwent
certain amendments by the Karnataka Act 1 of
1974 Sections 79-A and 79-B were introduced. The
restrictions under Section 79-A were primarily
based on family income criteria whereas under
Section 79-B of the Act, it was on the basis of
extent of holding. These provisions contained in
Chapter V of the Act imposed restrictions on
acquisition and holding of land by certain persons.
Section 79-A (1) specifically prohibited person or
family or a joint family with specified amount of
annual income from sources other than agricultural
lands from acquiring any land as land owner,
landlord, tenant or mortgagee with possession or
otherwise or partly in one capacity and partly in
another.

For the purpose of sub-section (1) of Section
79-A
, the aggregate income of all the members of a
family or a joint family from sources other than
agricultural lands is to be deemed to be income of
the family or joint family, as the case may be from
such source. Methodology for computation of
aggregate income is based on average annual
income of such person or family from such source.

16

As we have already referred to, Section 79-B
deals with prohibition of holding agricultural land
by certain persons beyond a specified limit. Sub-
clause (1) (a) provides that no person other than a
person cultivating land personally shall be entitled
to hold land. The said section further provides:-

(b) it shall not be lawful for,-

(i) an educational, religious or charitable
institution or society or trust, other than an
institution or society or trust referred to in
sub-section (7) of section 63, capable of
holding property;

(ii) a company;

(iii) an association or other body of
individuals not being a joint family,
whether incorporated or not; or

(iv) a co-operative society other than a co-
operative farm,
to hold any land.

(2) Every such institution, society, trust, company,
association, body or co-operative society,—

(a) which holds lands on the date
of commencement of the Amendment
Act and which is disentitled to

17
hold lands under sub-section (1), shall, within ninety
days from the said date, furnish to the Tahsildar
within whose jurisdiction the greater part of such land
is situated a declaration containing the particulars of
such land and such other particulars as may
prescribed; and

(b) which acquires such land after the said date shall
also furnish a similar declaration within the
prescribed period.

(3) The Tahsildar shall, on receipt of the declaration
under sub-section (2) and after such enquiry as may
be prescribed, send a statement containing the
prescribed particulars relating to such land to the
Deputy Commissioner who shall, by notification,
declare that such land shall vest in the State
Government free from all encumbrances and take
possession thereof in the prescribed manner.
(4) In respect of the land vesting in the State
Government under this section an amount as specified
in section 72 shall be paid.

Explanation.—For purposes of this section it shall be
presumed that a land is held by an institution, trust,
company, association or body where it is held by an
individual on its behalf.

xxxxx

104. Plantations.— The provisions of section 38,
section 63 other than sub-section (9) thereof, sections
64
, 79-A, 79-B and 80, shall not apply to plantations.
Explanation.—In this section ‘Plantation’ means
land used by a person principally for the cultivation
of plantation crop and includes,—

18

(i) any land used by such person for any purpose
ancillary to the cultivation of such crop or for
preparation of the same for the market; and

(ii) agricultural land interspersed within the
boundaries of the area cultivated with such crop by
such person,
not exceeding such extent as may be determined by
the prescribed authority as necessary for the
protection and efficient management of such
cultivation.”

12. On construction of different provisions of the 1961 Act, we find

that in the event the Tribunal’s finding is correct that the major part of

the land which the declarants have claimed to be plantation fits that

description, then the prohibition imposed on holding of land by entities

referred to in Sub-section 1 of Section 79-B would not apply, having

regard to the provisions of Section 104 of the Act. But there is a factor

which has not been clarified before us in course of hearing, which in

our opinion would have had material impact on the rival claims. As per

the deed of sale, the partnership firm had obtained forest area of

3485.83 acres. In the event this area is not held to be under plantation,

then the land which has been found by the Tribunal to be beyond ceiling

limit would be much beyond than what has been computed. Another

19
issue which also appears to have not had been considered by the

Tribunal and also the High Court is that the estate was originally

purchased by registered firm. It has not been explained by the

declarants as to how the estate of the firm devolved upon its partners.

No legal instrument has been brought to our notice through which

property of the firm became the partners’ individual property. This

issue is of significance because under Section 79(1)(b)(iii), there is

prohibition on an association or other body of individuals not being a

joint family, whether incorporated or not in holding land. The latter

factor, however, would assume importance in the event the land

claimed to be under plantation is found to be incorrect as originally

major part of the estate was forest land. But to determine this question,

we do not think proper examination of factual situation had been

undertaken. On this aspect of the dispute, State’s plea is that the spot

inspection took place in a single day and having regard to the area

involved, such an exercise was impossible. If this contention is

examined in isolation, we would have had accepted the view of the High

Court that at this stage there ought not to be any factual enquiry. But

considering the fact that land purchased included large tract of forest

20
land, we are of the view that the scrutiny on the part of the authorities

in the case of the declarants’ land was inadequate. This is one of the

main grounds on which the present appeal is founded. There is

reference to a Writ Petition in the paper book filed by the original

declarants with prayer for felling of trees on the subject-land. The

petition was registered as Writ Petition No.42774 of 1982. In that

proceeding an interim order was passed permitting felling of trees by

the petitioners as per a list subject to the provisions of the Karnataka

Preservation of Trees Act, 1976. After obtaining the interim order

permitting such felling of trees, however, the writ petition was

dismissed as not pressed at the instance of the declarants by an order

passed on 7th November, 1990. The said writ petition was dismissed as

withdrawn after obtaining interim order, we do not think that the result

of that writ petition would have any bearing on the present appeal. In

our opinion, neither the High Court nor the Tribunal has considered

these important aspects of the subject controversy. Without determining

how forest land shown in the sale deed got transformed into plantation

land in the declaration, the decision on ceiling limit could not be taken.

We accordingly set aside the judgments of the High Court in the Writ

21
Petition No.10920 of 1983 and also judgment of the Review Court in

Review Petition No.817 of 2004. We do not consider it necessary to

independently express our opinion in the appeal arising out of W.P.

No.40425/1982 as our opinion expressed in this judgment delivered in

the other two appeals cover that decision as well. The Tribunal’s orders

in original and review, being LRY 167/74-75 dated 16th September,

1982 and LRY 167/74-75 dated 10th November, 1982 also are quashed.

We direct the Tahsildar to undertake fresh proceeding on the basis of

the declaration filed under Section 66 of the 1976 Act by the

predecessors of the respondents. It shall be open to the authorities

undertaking such proceeding to examine as to whether declaration

under Section 66 of the Act was proper course or not for determining

the issues in dispute, including the question of vesting of the land or

part thereof in the State. As substantial time has lapsed, we direct the

proceeding under the applicable provisions of the said Act to be

completed in accordance with law within a period of sixteen weeks.

13. The appeals stand allowed in the above terms.

22

14. Interim order, if any, shall stand dissolved. All other applications

shall stand disposed of.

15. There shall be no order as to costs.

…..………………………….J.

(Deepak Gupta)

……………..……………….J.

(Aniruddha Bose)

New Delhi,
April 27, 2020.

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