.,. STA.'f.E OF KARNATAKA v. KRISHNAJI SRINIVAS KULKARNI AND ORS.

The Judgment of the Court was delivered by

K. RAMASWAMY, J. Special leave granted.

These appeals arise from the order of the division bench dated January 18, 1990 of the Karnataka High Court in Writ Petition Nos. 11215· H

r 974 SUPREM!J COURT REPORTS (1993) SUPP. 3 S.C.R.

A 11223 of 1985 and batch. The respondents own different extents of agricul- tural lands situated at Jambaga and other villages in Bijapur district of Karnataka State which were in erstwhile part of Bombay province. They . leased out their lands to M/s Sugarcane Products and Industries Ltd., a registered company, by a registered lease dated April l, 1942 for a period of 30 years which stood expired on March 31, 1973, but remained in possession as tenant. The Karnataka Land Reforms Act 1961, Act 10 of 1962 (for short 'the Act') was amended by Amendment Act l of 1974, (for short 'the Amendment Act'). The latter came into effect from March l,

1974. Section 79-B of the Act prohibits holding of agricultural land by certain persons. Sub-section (1) (b) declares that with effect from the date of the commencement of the Amendment Act, it shall not be lawful for a company to hold any land. Sub-~. (2) the~eof mandates that every such company to furnish to the Tehsildar having jurisdiction over the land,. a declaration containing the particulars of such lands and such other prescribed particulars. Under sub-s. (3) thereto the Tehsildar after enquiiy made in the prescribed manner should send the statement to the Dy. Commissioner who declares, by notification that, 'such land shall vest in the Stat~ Govt. free from all encumbrances'. Sub-section (4) gives right to the owner of the land payment of compensation prescribed in s.7Z.. The lessee company submitted a declaration, though purported to be under s.66, but on the facts it must be one under s.79-B(2). The Tahsildar after conducting the enquiry and given opportunity to the respondents submitted the declaration to the Dy. Commissioner who published in the prescribed manner. Thus 600 acres of demised lands stood vested in the State free from all encumbrances. The respondents challenged the action in the writ petitions contending that as on March l, 1974 the company was not holding the demised land as a tenant. The Company, therefore, was incompetent . to file any declaration under s.66 and it cannot be treated to be under s.79-B. Its possession is not lawful and that, therefore, the land does not stand vested in the State. The company was not a holder under s.79-B. The land owners are holders of the lands. The High Court in ihe impugned order rightly held that the impugned order was without authority of law, being outside the purview of s.79-B(3) of,the Act and the ownership of the respondents, however, was not declared.

It is contended for the State that under s.79-B(l), a person in ---- possession cultivating the land personally shall alone be entitled to hold - H the land. The .Company . ha\ing been declared to be disentitled to hold the .

.. STATE v. KULKARNI [RAMASWAMY, J.] 975

lands on or from March 1, 1974 and being enjoined under sub-s.(2) to furnish a declaration to the Tahsildar having jurisdiction over the land or greater part thereof. It is the "holder" for the purpose of s.79-B of the Act. It is made clear by sub-section (1) of Section 79-B. Shri Javali, learned senior counsel for the respondents, placing reliance on s.2 (ii) of the Karnataka Land Revenue Act, 1964, contended that the possession of the company was unlawful as the lease had expired by afflux of time. Five hundred acres were taken possession by the lessors, land owner and 600 acres though remained in possession of the company, the Act did not divest their title. Only the title of the land under personal cultivation of the tenant having existed jural relationship of landlord and tenant alone stood divested as envisaged under section 44. On expiry of the lease in the year C 1972·73 the possession of the tenant was not juridical, but only as tenant · hol(iing over but in unlawful possession. The lessors did not accept the rent from the tenant. Therefore, the Company has neither right to file any declaration under s.66 nor under s.77· 8(2) nor is it filed within 90 days limitation prescribed thereunder. Section 79-8(2) postulates "holder of the D land" while s.44 speaks of "land in personal cultivation of tenant". They bring out the distinction that the holder must be one in lawful possession and personally cultivating the land under s.2(11) of the Act. Since the tenant was not cultivating the land, nor had juridical possession, the declaration under s.79-8(3) is illegal and the interpretation given by the High Court is correct. In support thereof he placed reliance on s.2(21), E "the land owner", s.2(31) "holder", s.5, 19, 20, 44, 58, 62, 66 and 77.

With a view to appreciate the rival contentions it is necessary to look into the scheme of the Act and the purpose envisaged therein. The Act is an agrarian reform prescribing "ceiling on land holding" and "conferment of ownership on tenant". Section 2(11) defines personal cultivation, the details of which are not material, but the explanation 1 to s.2(11) amplifies that the land held by a Society, etc. shall be deemed to be cultivating personally, if such a land is cultivated by hired labour or by servants under the personal supervision of an employee or agent of such institution, society, trust, etc. Under s.2(21), the owner of the land has been defined with an extended inclusive definition. Section 2(34) defines tenant means an agriculturist who cultivates personally the land "he holds on lease from a landlord". Section 5 prohibits grant of lease or creation of tenancy after March 1, 1974 for any period whatsoever. Sub-section (2) gives exemption . to seamen or soliders with which we are not concerned. Section 6 postu- H

p. 976

A !ates that "no tenancy of any land shall be terminated merely on the ground that the period fixed for its. duration whether by agreement or otherwise has expired". In other words, s.6 manifest the legislative intention that notwithstanding the expiry of the lease by f'.fflux of time, the tenancy on account thereof, should not stand terminated. A conjoint reading of ss.19, B 20, 58, 60, 62 read with s.44 indicates that on or from March 1, 1974 the tiller of the soil should alone be entitled to remain in possession and should personally cultivate the land. The pre-existing right, title and interest of the land owner stood extinguished and the lands stood vested in the State free .... from all encumbrances. The Act confers ownership rights on the tenants C in the manner prescribed by the Act. If he either ceases to cultivate the land or leases to others or contravenes the grant, the conferment of ownership of land stands terminated. The resultant consequences are that the lands shall stand divested from him and revested in the State Govt. for the purpose of assignment to the other tiller. Section 44 expressly divests the title of the land-owner and conferred right only for compensation under D s.72. Equally s.79-B prohibits the company or any charitable socjety or trust or co-operative society, etc. to hold the lands. Sub-section (1) expressly mandat.es that "no person other than a person cultivating land personally" shall be entitled to hold land. In other words, a person be it owner or a tenant, but be in possession and personally cultivating the land has been statutorily permitted to hold the land. The holding of the land owner is subject to the ceiling under s.66. The company, etc. was prohibited to hold land. A duty has been imposed by sub-s.(2) of s.79-B to furnish within 90 days, to the Tahsildar having jurisdiction a declaration concerning the land held by it in the prescribed manner. In other words, the company is enjoined to make the declaration. "On making such a declaration" that the specified land was held by it, sub-s.(3) provides the procedure for enquiry. On compliance thereto and submission of a report after the prescribed enquiry, by the Tahsildar, the Dy. Commissioner, he has been empowered to declare by the notification that such land "shall vest in the State Govt. free from all encumbrances" and take possession thereof in the prescribed manner. The definition of holder under s.2(11) of the Land Revenue Act undoubtedly defines, "to mean in lawful possession of land whether such possession is actual or not". We are not so much concerned with the lawful possession or possession of a tenant holding over for the purpose of interpreting the provisions of the Act. Section 6, as seen earlier, specifically declares that despite the expiry of lease by efflux of time, the tenancy would

- T. STATE v. KULKARNI [RAMASWAMY, J.) 977

not stand terminated and that, therefore, the possession of the tenant/com- A pany statutorily remains to be juridical possession. The phrase "holder" of the land in s.79-B must be construed from that perspective. The contra contention violates the scheme and defeats the purpose of the Act. It is to be remembered that in respect of the matters covered under the Act, the jurisdiction of the civil court has been ousted and conferred on the B Tribunals under the Act. There is no forum ereated under the Act to decide the rights of the land-owner and the erstwhile tenant.

In Bhawaniji Lakhamshiu & Ors. v. Himatlal Jamnadas Dani & Ors., [1972) 2 SCR 890, the facts were that after the lease had by the appellant expired by efflux of time they remained in occupation and were paying the C rent to the lessor. The leases were determined by issue of notice under s.106 of the Transfer of Property Act an~ the suit was tiled for decree of eviction on the ground of personal requirement. One of the defences was that after the lease was determined the lessor accepted the rent. Therefore~

- as tenant holding over he was entitled to the protection of s.13 of the D Bombay Rent Act. That was negatived by all the courts and decree for eviction was granted. This Court held that the act of holding over, after expiry of the lease, . does not qeate a tenancy of any kind. After he continued with the consent of the landlord he is a tenant at sufferance and :.1

without consent he is not a tenant holding over. Under s.116 of Transfer of Property Act the assent of the landlord for the continuance of the E possession after the lease w~s determined creates a new tenancy, but there must be bilateral assent expressly or otherwise. Accordingly it was held that there was no proof that the landlord had accepted the rent agreeing to ... continue the tenancy. The ratio therein has no application to the facts of this case. In M.C. Chockalingam & Ors. v. Manickavasagam & Ors., (1974) p 2 SCR 143, the question therein was whether the lessee of a Cinema Theatre, after the expiry of the lease was having lawful possession under Rule 13 of Madras Cinemas Regulations. In that context this court held that by the language of rule 3 it is implicit that the owner is having a title to the property if he can satisfy the licensing authority that the tenant, though was in possession, his possession was not lawful, but litiguous G possession and he is not entitled to the renewal of the licence. Lawful possession cannot be established without a concomitant existence of lawful relationship between the landlord and the tenant. This relationship cannot be established against the consent of the landlord unless his consent becomes under special law, irrelevant. Lawful possession is not litiguous . H

978 SUPREME COURT REPORTS (1993) SUPP. 3 S.C.R. • J

A possession and must have some foundation in legal right to possess the property which cannot be equated with a temporary right to enforce recovery of the property in case a person who is wrongly or forcefully dispossessed from it. Therefore, the ratio in the above decision also is not of any assistance to the respondents. It is also equally well settled law that of the expiry of the lease of the landlord, the rent of the landlord continues to receive without protest, he a~uiesed to the continuance in possession by the lessee and unless he is lawfully ejected his possession cannot be held to be unlawful.

As seen, admittedly the respondents as on March 1, 1974 did not have possession of the lands. The company lessee continued to hold the land. By operation. of s.6 though its lease had expired by efflux of time, the lease did not stand terminated. In other words, his possession remains juridical possession under the Act. Therefore, on its being prohibited to remain in possession, the company was enjoined under s.79-B{2) to furnish declaration and accordingly he did furnish to the Tahsildar, though mis- D takenly done by quoting s.66(1). Quotation of a wrong provision does not take away the jurisdiction of the authorities to enquire under s.79B{3) of the Act. The tribunals, therefore, had jurisdiction to enquire into and publish the declaration as enjoined under s.79-B{3) of the Act. Th~ demised 600 acres land held by the company stood vested in the State free E of encumbrances. Accordingly the order of the High Court is clearly illegal. Jt.-is ·set aside and the action of the Dy. Commissioner under s.79-B{3) is upheld. The appeals are allowed, but without costs. ·

N.P.V. Appeals allowed.