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Tammanna Parisa Gundale Vs. the State of Karnataka and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKarnataka High Court
Decided On
Case NumberWrit petn. No. 4475 of 1977
Judge
Reported inAIR1978Kant199
ActsKarnataka Land Reforms Act, 1962 - Sections 48A; Bombay Tenancy and Agricultural Lands Act, 1948 - Sections 14, 27, 29, 29(2), 29(3) and 84; Bombay Rents, Hotel and Lodging House Rate Control Act, 1947 - Sections 15; Constitution of India - Article 227
AppellantTammanna Parisa Gundale
RespondentThe State of Karnataka and ors.
Appellant AdvocateV.S. Gunjal, Adv.
Respondent AdvocateM.S. Gopal and ;W.V. Arbatti, Advs.
Excerpt:
.....not against a trespasser, there were strong grounds to hold that there existed a relationship of tenant and land-owner between the petitioner and the 2nd respondent. 8. the principle laid down in both the decisions are undoubtedly well settled. it is also not in dispute that respondent-2 failed before the original authority and also before the appellate and revisional authorities to secure an order of eviction against the tenant m/s. the tenant, who was the appellant before the supreme court, contended that in the lease deed itself there was a term which clearly authorised the tenant to sub-let the premises. they further held that section 15 of the said act is based on public policy and the said policy cannot be defeated by consent of parties, 12. the present case is clearly..........well settled. therefore i proceed to examine as to whether the act of recognition of sub-tenant as tenant, in the facts and circumstances of this case amounts disobedience of law as the decision in this case entirely depends upon the answer to tha said question.9. section 27 of the bombay act which prohibits sub-letting is as follows:'27 (1) no sub-division or sub-letting of the land held by a tenant or assignment of any interest therein shall ba valid: provided that nothing in this subsection shall prejudicially affect therights of a permanent tenant, ** **' s. 14 of the bombay act provides forgrounds of termination of tenancy. it reads thus:'14 (1) notwithstanding any law, agreement or usage, or the decree or order of a court, the tenancy of any, land shall not be terminated-.....
Judgment:
ORDER

1. The petitioner who originally entered as a sub-tenant of agricultural lands, and who claimed occupancy rights under Section 48-A of the Karnataka Land Reforms Act (briefly 'the Act') on the ground that he had become a lawful tenant of the land-owner, but whose claim has been rejected by the Land Tribunal, has presented this writ petition praying for quashing the order of the Land Tribunal.

2. The undisputed facts of the case are these: One Smt. Subhadrabai, mother of respondent 2 was the owner of 29 acres and 5 guntas of land in Sy. No. 474 of Ainapur village in Athani Taluk in. Belgaum District, The said lands were leased in favour of Govardhan Dairy Farm Ltd., Poona in the year 1948-49. Govardhan Dairy Farm in turn sub-let the lands in favour of the petitioner. Section 27 of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as 'the Bombay Act') provides that sub-letting of lands by a tenant is invalid and Section 14 of that Act provides the various grounds on which tenancy can be terminated and one of them is on the ground of sub-letting, but Section 29 (2) of the Bombay Act fixes the period of limitation of two years to make an application for possession, from the date on which the right to obtain possession accrued. Under these provisions Smt. Subhadrabai instituted eviction proceedings before the Tenancy Aval Karkun, Athani, against the original tenant on the ground that they had sub-let the lands in favour of the petitioner. He was also made a party to the proceedings. The claim was rejected and the order was confirmed in appeal by the Assistant Commissioner. The revision petition to the Appellate Tribunal was also dismissed. Against these orders C. P. No. 198/69 was filed in this Court under Article 227 of the Constitution. The said petition was also dismissed on 29-11-1961. Thereafter the name of the petitioner was entered in the revenue records as tenant vide M. C. No. 5955 on 5-1-1962. Thereafter the petitioner paid rents to the mother of the 2nd respondent and after her death he paid the rents every year to her husband i.e. father of the 2nd respondent,- who was a Civil Judge and who has received it.

A resumption application was tiled by the 2nd respondent represented by his elder brother Prahlad against the petitioner in the year 1966 under Section 14 of the Act, The said application came to be dismissed as per order dated 7-10-1972 by the II Additional Munsiff,

3. On the basis of the above facts, the petitioner filed an application in Form No. 7 claiming occupancy rights in respect of 29 acres and 5 guntas of land in Sy. No. 474 of Ainapur village before the Land Tribunal, Athani Taluk wider Section 48-A of the Act.

4. The petitioner produced before the Land Tribunal receipts for having paid the land revenue dated 27-4-1960, 11-5-1961, 28-5-1962, 19-6-1963, 23-4-1964, 24-6-1965, 25-1-1966, 4-6-1967, 17-5-1968, 27-5-1969, 21-6-1970, 25-5-1971, 25-6-1972, 20-6-1973, 14-4-1974, 23-5-1975 and 24-4-197.6. The petitioner also produced the receipts for having remitted the rents to the land-owner dated 19-4-1960, 27-4-1960, 12-3-1962, 13-3-1964, 8-4-1965, 4-5-1966, 19-7-1967, 7-4-1968, 25-4-1969, 23-5-1971 and 11-3-1972. He also produced the extract from the Mutation Register, according to which, as per Entry No. MC 5955 on 5-1-1962, the name of the petitioner came to be registered as tenant subsequent to the order of this Court, The Land Tribunal by an order of the majority of the members dated 28-5-1977 rejected the claim of the petitioner. -The Chairman of the Land Tribunal, however, gave a dissenting judgment upholding the claim of the petitioner. In the order of the majority of the members, it is noticed that none of the facts which are set out earlier which have also been set out in the order of the Land Tribunal are undisputed. But they proceeded on the basis that as the petitioner entered the land as a sub-lessee and as sub-letting was invalid in view of Section 27 of the Bombay Act, the petitioner cannot be considered as a tenant or a person lawfully cultivating the land, on the date of the commencement of the Act, which alone en-titles a person to claim occupancy rights. They relied on the decision of the Supreme Court in Waman Shrinivas Kini v. Ratilal Bhagwandas and Co. : AIR1959SC689 , In the said decision, it has been held that a sub-lease created though in terms of the agreement cannot be valid when the law prohibited sub-letting and a tenant against whom proceedings for eviction were brought under the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act on the ground of sub-letting cannot rely on the terms in the lease deed authorising him to sub-lease when the Act itself prohibited sub-letting. The Chairman of the Land Tribunal held that as in the present case, the land-owner has collected the rents from the petitioner and had also filed resumption application under Section 14(1) of the Act which could have been filed only against a tenant and not against a trespasser, there were strong grounds to hold that there existed a relationship of tenant and land-owner between the petitioner and the 2nd respondent.

5-6. Sri V.. Section Gunjal, learned counsel for the petitioner, contended that the order of the Land Tribunal suffers from patent error of law in that, the decision of the Supreme Court in Waman Shrinivas's case : AIR1959SC689 has been wrongly applied. He urged that having regard to the facts and circumstances of the case which are different from that case and the provisions of the Bombay Act, which are not similar in all respects to the provisions of the Act considered in the Supreme Court case there was absolutely no justification for holding that the landlord and tenant relationship had not come into existence and the petitioner was not cultivating the land lawfully on the date of the commencement of the Act.

7. Sri M. Section Gopal, learned counsel appearing for respondent-2, on the contrary, contended that Section 27 of the Bombay Act prohibited the sub-leasing of agricultural lands and no amount of acquiescence on the part of respondent-2 could make the possession of the petitioner lawful. He submitted that the Tribunal was right in applying the ratio of the decision of the Supreme Court referred to earlier. Apart from the Supreme Court case he also relied on the decision of the Privy Council reported in (Surajmull v. Triton Insurance Co.), in which it was held that no Court can enforce as valid which the law declares invalid and obedience to law cannot be dispensed with by consent of parties.

8. The principle laid down in both the decisions are undoubtedly well settled. Therefore I proceed to examine as to whether the act of recognition of sub-tenant as tenant, in the facts and circumstances of this case amounts disobedience of law as the decision in this case entirely depends upon the answer to tha said question.

9. Section 27 of the Bombay Act which prohibits sub-letting is as follows:

'27 (1) No sub-division or sub-letting of the land held by a tenant or assignment of any interest therein shall ba valid:

Provided that nothing in this subsection shall prejudicially affect therights of a permanent tenant,

** **'

S. 14 of the Bombay Act provides forgrounds of termination of tenancy. It reads thus:

'14 (1) Notwithstanding any law, agreement or usage, or the decree or order of a Court, the tenancy of any, land shall not be terminated-

(a) unless the tenant

(i) ** **

(ii) ** **

(iii) has sub-divided, sub-let or assigned the land in contravention of S, 27.

** **'

S. 29 (2) and (3) of the Bombay Act provides for the procedure for taking possession by a land-owner. It reads aa follows:

'29 (1) ** **

(2) No landlord shall obtain possession of any land or dwelling house held by a tenant except under an order of tha Mamlatdar. For obtaining such order ha shall make an application in the pre-scribed form and within a period of two years from the date on which the right to obtain possession of the land or dwelling house, as the case may be, is deemed to have accrued to him.

(3) On receipt of application under Sub-section (1) or (2) the Mamlatdar shall, after holding an enquiry, pass such order thereon as he deems fit.'

From the above provisions, it may be seen that Section 27 of the Bombay Act provides that sub-letting by a tenant is not valid and Section 14 authorises a landlord to terminate the tenancy on the ground of sub-letting and Section 29 of the said Act prescribes a period of limitation of two years for obtaining possession of the lands from the date on which the right to obtain possession of the land accrues to the landlord.

10. In the present case, it is not in dispute that the mother of the 2nd respendent, the original land-owner, did institute proceedings against the original tenant for termination of tenancy and eviction on the ground of violation of Section 27 of the Bombay Act by sub-letting the lands to the petitioner from the land in question and that the petitioner was also made a party to the said proceedings. It is also not in dispute that respondent-2 failed before the original authority and also before the appellate and revisional authorities to secure an order of eviction against the tenant M/s. Govardhan Dairy Farm and further that the matter was taken up before this Court in C. P. 198 of 1959 under Art. 227 of the Constitution and that by an order of this Court dated 28-11-1961, the said petition was also dismissed. As is cleat from the said decision, which has been produced by the 2nd respondent as Exhibit I along with the statement of objections, that the claim of the 2nd respondent for eviction was dismissed on the ground that it was time-barred. There is no provision in the Bombay Act as to the steps that could be taken up by a landlord for terminating the tenancy or securing possession from a tenant who had sub-let the lands in violation of Section 27 after the expiry of the period of two years prescribed in Section 29 of the Bombay Act. In this situation, the only provision of the Bombay Act under which the 2nd respondent could have sought eviction of the petitioner from the land in question was Sec. 84. The said section reads as follows:

'84. Any person unauthorisedly occupying or wrongfully in possession of any land

(a) the transfer or acquisition of which either by the act of parties or by the operation of law is invalid under the provisions of this Act,

(b) the management of which has been assumed under the said provisions, or

(c) to the use and occupation of which he is not entitled under the said provisions and the said provisions do not provide for the eviction of such persons, may be summarily evicted by the Collector.'

The above section provides for the summary eviction of any person unauthorisedly occupying or wrongfully in possession of any land. The 2nd respondent, therefore, could have taken action under Section 84 of the Bombay Act against the petitioner on the ground that his possession of the land was unauthorised as he entered the land by way of sub-lease which is contrary to the provisions of Section 27 of the Bombay Act, Therefore it becomes clear that as the land-owner had lost his right, on the ground of the expiry of the period of limitation prescribed under Section 29 of the Bombay Act, to apply for taking possession of the land from the tenant and as it is not disputed that the original tenant had completely lost interest after the sub-lease in favour of the petitioner, the landowner could resort to make an application to the concerned authority under Section 84 of the Bombay Act for summary eviction of the petitioner. But after the disposal of the civil petition before this Court, the mother of the 2nd respondent instead of resorting to S, 84, proceeded to recognise the petitioner as lawful tenant by accepting the rents. After her death it is not in dispute that the father of the 2nd respondent has received the rents from the petitioner. Further, it is also not in dispute that the name of the petitioner came to be entered as tenant as per mutation entry (M. C. No. 5955) dated 5-1-1962, a copy of which is produced as Exhibit B along with the writ petition, and no action has been taken for getting the said entry set aside. This circumstance also goes to show that after the dismissal of the civil petition before this Court, respondent-2 instead of applying for summary eviction under Section 84 of the Bombay Act chose to treat the petitioner as tenant. Does this act of the 2nd respondent amount to contravention of any of the provisions of the Bombay Act? There is no provision in the Bombay Act prohibiting a landlord placed in such a situation from recognising the sub-tenant introduced by a tenant as his own tenant.

11. The next question for consideration is whether the ratio of the decision of the Supreme Court referred to above applies to this case. The said case arose under the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. Section 15 of the said Act provide that notwithstanding anything contained in any law, it shall not be lawful after the coming into operation of the Act for any tenant to sub-let the whole or any part of the premises or to assign or transfer in any other manner his interest therein. The said case arose when the landlord brought a suit for ejectment of the tenant inter alia on the ground of sub-lease of the premises by the tenant. The tenant, who was the appellant before the Supreme Court, contended that in the lease deed itself there was a term which clearly authorised the tenant to sub-let the premises. Having regard to the wordings of Section 15 of the said Act, the Supreme Court held that there can be no contract contrary to the provisions of the statute. They further held that Section 15 of the said Act is based on public policy and the said policy cannot be defeated by consent of parties,

12. The present case is clearly distinguishable from the said case. As stated earlier, this is not a case where the landlord is asking for eviction of a tenant of land on the ground that he had sub-let the same in violation of law as in the Supreme Court case, In such a case undoubtedly the tenant, who has contravened the provisions of the Act by sub-letting cannot resist eviction even on the ground of written or oral consent on the part of the landlord for the act of sub-letting. In fact, as narrated earlier, the mother of the 2nd respondent, instituted eviction proceedings against the tenant on the ground of subletting. If the ratio of the Supreme Court case referred to earlier were to apply to the facts of the present case, the civil petition of the mother of the 2nd respondent ought to have succeeded and an order for eviction of the tenant including the sub-tenant would have been granted in the said case. But the said civil petition was dismissed, because there is another mandatory provision of law in the Bombay Act itself, namely, the prescribed period of limitation of two years within which alone the landlord could terminate the tenancy and seek possession of the lands on the ground of violation of Section 27 of the Born-bay Act by sub-letting and this constitutes a clear distinguishing feature between the present case and the Supreme Court case relied on by the 2nd respondent.

13. Another distinguishing feature of this case as pointed out earlier is that there is no provision in the Bombay Act covering a case of this type where the original tenant after sub-leasing the land completely loses the interest in it and the land-owner begins to receive rents directly from the sub-tenant and also treats him as a tenant in all respects. The undisputed facts of this case are:--

(i) that the landlord had received the rents from the petitioner;

(ii) that no action has been taken by the 2nd respondent against the mutation entry to the effect that the petitioner was a tenant, and

(iii) that an application was made be-fore the Land Tribunal for resumption under Section 14 of the Act.

As stated earlier the only section on which the landlord could have taken action for summary eviction of the petitioner from the land in question was under Section 84 of the Act. But there is no compulsion in any of the provisions of the Bombay Act that the landlord must take action under Section 84 of the Act for eviction. If he had the right to take action for the eviction of the petitioner from the land in question under Section 84 of the Act, he could as well have declined to take action and to treat the petitioner as his lawful tenant.

14. As noticed earlier sub-letting of agricultural lands is prohibited by Section 27 and Section 14 of the Bombay Act confers right on the landlord to terminate the tenancy of a tenant who sub-lets the lands in violation of Section 27, but Section 29 of the Bombay Act prescribes the period of limitation. After the expiry of the period of limitation, there is no remedy that could be resorted to against the tenant and that is what happened to the 2nd respondent in C. P. 198 of 1959 before this Court. In such a situation, there is nothing in Section 27 of the Bombay Act or any other provisions of the Act debarring a landlord to recognise the sub-tenant introduced by the tenant as his tenant. Similarly, it was open for the landlord to have refused to recognise or treat the petitioner as his tenant even after the dismissal of the civil petition by this Court, by refusing to receive rent, and objecting to the entry in the revenue records showing the petitioner as tenant, and also by not filing application under Section 14 of the Act for resumption in which event, on the date of commencement of the Act the petitioner could not have been considered as a person cultivating the lands in question lawfully as a tenant, and he could have successfully resisted the claim of the petitioner for occupancy rights in respect of the land in question. Therefore in the act of recognition of a sub-tenant, introduced by a tenant, against whom there is no remedy provided under the Bombay Act after the expiry of the period of limitation prescribed under Section 29 (2) of the Bombay Act, as his tenant, by the landlord, there is no contravention of the provisions of Section 27 of the Bombay Act as it is not an act of sub-letting which alone is prohibited under Section 27. Such an act falls outside Section 27 and there is no provision in the Bombay Act prohibiting the landlord to treat the erstwhile sub-tenant as his own tenant. Therefore the principle laid down in the Supreme Court case as also in the decision of the Privy Council is clearly inapplicable to the present case,

15. As regards the resumption application filed by respondent, Sri M. Section Gopal, learned counsel for respondent-2, haw contended that the petitioner was a minor and he was not represented by his natural guardian i.e. his father, in the said case and, therefore no importance can be attached to the said proceedings. In the said case an elder brother of the petitioner acted as the next friend and not as a guardian. The Court exercising power under the Karnalaka Land Reforms Act held as follows on this point:--

'The learned counsel for the opponent further contended that P.W. 1 could not have filed the present application on behalf of the minor applicant, and he is not the next friend of the applicant, But the present application is admittedly filed by P. W. 1 describing himself to be the next friend of the applicant, For that the father of the applicant as his natural guardian or any of the other brothers of the applicant have not at all objected saying P.W. 1 is acting detrimental to the interest and benefit of the applicant. So, P.W. 1 can very well act as the next friend of the applicant and ask for resumption of the land.'

Alternatively he also submitted that the filing of resumption application even if it amounts to an admission by the 2nd respondent that the petitioner is a tenant should be confined to that case. In support of this submission, he relied on the decision reported in 43 Bom LR 2321 (AIR 1941 Bom 144) (Government of Bombay v. Narayan Govind Nadgir), Even assuming that the 2nd respondent is right in contending that his elder brother not being a natural guardian could not have filed the application for resumption and the said admission cannot be considered as binding for this case, the fact remains that the rents have been received by the natural guardian of the 2nd respondent and that circumstance is sufficient to hold that the petitioner has been treated as tenant. There is also an additional circumstance that the name of the petitioner came to be entered as tenant as per mutation entry referred to earlier and the said entry has not been challenged by the 2nd respondent. This is consistent with the receipt of rents by the natural guardian from the petitioner right from 19112 i.e., 12 years before the Karnataka Land Reforms Act came into force.

16. In the circumstances, I reverse the finding of the Land Tribunal on the question of tenancy and hold that the, petitioner's initial entry into the land in question, as sub-tenant, though contravened Section 27 of the Bombay Act, the act of recognition of the petitioner as tenant since 1962 after the 2nd respondent fail-ed to get an order of eviction against the tenant for contravention of Section 27 of the Bombay Act in view of the bar created by Section 29 (2) of the Bombay Act, is not in contravention of any of the provisions of the Bombay Act. Therefore, the petitioner should be deemed to be ai person lawfully cultivating the land be-longing to the 2nd respondent on the date of the commencement of the Act and, therefore, a 'tenant' as defined under the provisions of the Act.

17. For the reasons stated above, the impugned order of the Land Tribunal, Athani Taluk dated 28-5-1977 produced along with the writ petition as Annexure 'A' is hereby quashed. The case is remanded to the Land Tribunal for considering the application of the petitioner filed in Form No. 7 read with Section 48-A of the Act claiming occupancy rights in respect, of 29 acres and 5 guntas of land in Section No. 474 of Ainapur village, Athani Taluk, in the light of the aforesaid finding. No costs.

18. Petition allowed.


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