Karnataka High Court
Smt Eliza Lasrado vs Mr Vincent Castelino on 26 July, 2024
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WA NO. 2540/2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF JULY, 2024
PRESENT
THE HON'BLE MR JUSTICE V KAMESWAR RAO
AND
THE HON'BLE MR JUSTICE C M JOSHI
WRIT APPEAL NO. 2540 OF 2019 (LR)
BETWEEN:
1. SMT. ELIZA LASRADO,
MAJOR,
D/O LUCY CASTELINO,
BEHIND ST. DOMNIC CHURCH,
KODIKAL, URVA STORES,
MANGALORE-575 006.
2. MRS. FLORA NAMBIAR,
MAJOR,
D/O EMMI CASTELINO,
BEHIND ST. DOMNIC CHURCH,
KODIKAL, URVA STORES,
MANGALORE-575 006.
...APPELLANTS
(BY SRI SHRIHARI K, ADVOCATE)
AND:
1. MR. VINCENT CASTELINO,
S/O LATE VICTOR CASTELINO,
AGED ABOUT 64 YEARS,
KUDUPU MUNDREL HOUSE,
KUDUPU VILLAGE,
MANGALORE TALUK-575 006.
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WA NO. 2540/2019
2. THE STATE OF KARNATAKA,
DEPARTMENT OF REVENUE,
M.S.BUILDING,
BANGALORE-560 001.
REP. BY ITS SECRETARY.
3. THE LAND TRIBUNAL,
MANGALORE TALUK,
MANGALORE, D.K.-575 001.
REP. BY ITS CHAIRMAN.
...RESPONDENTS
(BY SRI PUNDIKAI ISHWARA BHAT, ADVOCATE FOR R-1;
SRI DEVARAJ.C.H, GOVERNMENT ADVOCATE FOR R-2;
VIDE ORDER DATED 08.08.2019 R-3 IS TREATED AS A
FORMAL PARTY)
THIS WRIT APPEAL IS FILED U/S 4 OF THE KARNATAKA
HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER DATED
11/06/2019 PASSED IN WP NOS.49909-49910/2012.
THIS WRIT APPEAL HAVING BEEN HEARD AND RESERVED
ON 25.06.2024, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:
CORAM: THE HON'BLE MR JUSTICE V KAMESWAR RAO
AND
THE HON'BLE MR JUSTICE C M JOSHI
CAV JUDGMENT
(PER : HON'BLE MR JUSTICE C M JOSHI) The appellants are respondent Nos. 3 and 4 in Writ Petition Nos.49909-49910/2012 and being aggrieved by the order passed by the learned Single Judge in the said writ petitions dated 11-06-2019 are before this Court. 3 WA NO. 2540/2019
2. Respondent No.1-Vincent Castelino happens to be the writ petitioner.
3. The petitioner had approached this Court in Writ petitions assailing the proceedings bearing No.LRT.875/ 1978-79 and 868/1978-79. The petitioner claimed that he is the owner of the land bearing Survey No.10/2P2 measuring 9 cents and Survey No.192/P2 measuring 11 cents situated at Kudupu village, Mangaluru Taluk. The writ petitioner claimed that among other lands, these two lands were purchased by his father-Victor Castelino under registered sale deed dated 01-08-1974 from its erstwhile owner. Thereafter, the Victor Castelino executed a Will on 31-12-1986 wherein he bequeathed Survey No.10/2P2 to the petitioner and bequeathed the second item Survey No.192/P2 measuring 11 cents jointly to the petitioner as well as another son Henry John Castelino. Later, there was a partition between the writ petitioner and his brother Henry John Castelino on 10-08-2001 and Survey No.192/P2 came to the share of the petitioner. The petitioner 4 WA NO. 2540/2019 contended that his name was shown in the RTC as owner for both the lands and there was an attempt in the year 2012 by respondent Nos.3 and 4 to enter the above said properties on the ground that they are the occupants as per the order passed in LRT 875/1978-79 and 868/1978-79 dated 13-10-1981by Land Tribunal. It is only thereafter that the writ petitioner came to know about the LRT proceedings and therefore, he approached this Court in the writ petitions.
4. The appellants herein, who are respondent Nos. 3 and 4 before the Writ Court filed objection statements contending that the challenge laid by the writ petitioner is bad on the ground of delay and laches since it is filed nearly 31 years after the order of the Land Tribunal. It was contended that the petitioner was not a party in the proceedings contemplated under Section 44 of the Karnataka Land reforms Act, because on the appointed date i.e., 01-03-1974, the father of the petitioner was not the owner of the property and therefore, the lands had vested 5 WA NO. 2540/2019 in the Government on 01-03-1974 itself and as such, the petitioner is not entitled for any relief.
5. After hearing both the sides, the learned Single Judge noticed that the Land Tribunal while dealing with the Form No.7 filed by the appellants herein had not bestowed its attention to the fact that the name of the writ petitioner was appearing in the records. It is also noticed that though the name of the father of the petitioner, i.e., Victor Castelino was shown in the revenue records, the Tribunal had not applied its mind to the material on record. The learned Single Judge has also observed that the land bearing Survey No.192 being a Punja land, it could not have been an agricultural land and as such, the claim of tenancy was not maintainable, and the Tribunal had not shown any reason as to whether the Tribunal could pass an order in LRT proceedings when the land was not used as agricultural land. Therefore, the learned Single Judge remanded the matters to the Tribunal to hold a fresh enquiry and pass appropriate orders in the matter. 6 WA NO. 2540/2019
6. Being aggrieved by the said order passed by the learned Single Judge, the appellants, who are respondent Nos.3 and 4 before the learned Single Judge have approached this Court in appeal.
7. Learned counsel appearing for the appellants would submit that on 01-03-1974, the lands came to be vested with the Government and at that time, the appellants were the tenants. Therefore, the sale deed executed by the land owner dated 01-08-1974, could not have conveyed any title to the purchaser i.e., Victor Castelino. He submits that the Tribunal had bestowed its attention on the admissions by the land owner as well as the mahazar which was prepared at the initiation of the proceedings and therefore, the Tribunal was justified in granting the occupancy rights to the appellants herein. He further submitted that RTC for the year 1968-69 shows their name and therefore, the Tribunal came to right conclusion.
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8. In support of his contentions, he placed reliance on the judgment in the case of Pundaleekappa Vs. The Land Tribunal, Bijapur District,1 wherein, it was held that "merely because the claimants have become owner subsequent to the appointed date i.e. 01-03-1974, the tenant cannot be deprived of the valuable rights accrued to him under the Act". He also relied on the unreported judgment in the case of The Lord Bishop and another Vs. The Land Tribunal Bantwal, D.K. and others2 to contend that "writ courts have to operate on a theory of justice that can serve as the basis of practical reasoning and that would invariably include the ways of judging how to reduce injustice and advance justice, rather than aiming only at the characterization of perfectly just scenarios. A demand for perfect justice if conceded to, would breed injustice, inasmuch as conflicting considerations cannot be fully resolved in any society". The above observations were 1 2000(4) Kar.L.J. Sh.Notes 23 2 WP No.1762/2005 DD 29-11-2022 8 WA NO. 2540/2019 made in the background that the petitioner approached the Court after considerable delay.
9. Per contra, the learned counsel appearing for respondent No.1/petitioner has contended that the order of the Tribunal is not a speaking order, and it has not bestowed its attention on the material on record. If it had bestowed its attention on the RTC certainly, it could have seen that the name of Victor Castelino was mentioned in the same. He contends that the claim is only in respect of the portion of the Survey numbers and the extent of the lands mentioned in the order of the Land Tribunal are different. The subject matter of the sale by the land owner in favour of Victor Castelino was not in respect of the entire portions of the properties, but it was only to the extent of 9 cents and 11 cents. He submits that the grounds raised by the appellants are not sustainable in law, inasmuch as, when the Land Tribunal took up the matter for consideration, the name of Victor Castelino was very much in the RTC. He points out to the observation of the learned 9 WA NO. 2540/2019 Single Judge, who had secured the original records and bestowed his attention on the same. Therefore, he resisted the appeal by relying on the judgment in the case of Gadigeyya Gulaiah Chebbi Vs. Chandrappa Basavanyappa Kivudanavar and another3, wherein, it was held that ".........the order that is required to be passed by the Tribunal is a speaking order and when the order impugned in the said judgment was not a speaking order and by merely stating that the claimant is a tenant, amounts to mere subjective satisfaction of the Tribunal. It must be objective satisfaction for which the reasons for coming to that conclusion must be disclosed in the order. Therefore, such orders are open for judicial review by the Writ Courts."
10. He also relied on the judgment in the case of Bakilana Chinnappa Vs. Land Tribunal, Mercara Taluk and others4, which lays down that :
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ILR 1976 Karnataka 1442 4 1975(1) Kar.L.J. 75 10 WA NO. 2540/2019 "......when a claim is in respect of a portion of a survey number the application in Form No.7 should show the demarcation of the portion claimed therein and the notice in Form No.9 issued to the land lord also should demarcate the portion and the order of the Tribunal should demarcate the portion which has vested in the Government. Without demarcating the portion and setting out the boundaries, grant of occupancy rights would be violative of principles of natural justice".
11. He also relied on the judgment in the case of Subhakar and others Vs. The Land Tribunal, Karkala Taluk, Karkala and others5, to contend that, the question whether the Punja land is cultivable or not is a pure question of fact and if it is brought under cultivation, it can be considered as agricultural land.
12. When we peruse the records in the light of the above contentions raised by appellants and respondent No.1 herein, it is evident that there is no dispute that the lands came to be vested in the Government on 01-03-1974 5 1999(4) Kar.L.J.524 (DB) 11 WA NO. 2540/2019 if it was occupied by the tenants. It is also an admitted fact that the sale deed is executed by land owner on 01-08-1974 which is subsequent to the coming into the force of Karnataka Land Reforms Amendment Act.
13. The argument of the learned counsel for the appellants that merely because the father of respondent No.1 had purchased the land which was tenanted, does not convey any title to subsequent purchaser in view of Section 44 of the Land Reforms Act is concerned, we are unable to accept the said argument, for the reason that, the question whether the writ petitioner was a tenant as on 01-03-1974 was considered by the Tribunal at a later date in the proceedings which was initiated by virtue of Form No.7 dated 26-03-1979. The question that was to be considered by the Tribunal was whether on the appointed dated i.e., on 01-03-1974, the applicants in Form No.7 were the tenants or not? It is because, the lands vest in Government on 01-03-1974 only if they were occupied by the tenants. Therefore, as on the year 1979, when the RTC discloses 12 WA NO. 2540/2019 that the name of Victor Castelino was mentioned in the records by virtue of the sale deed dated 01-08-1974, it was incumbent upon the Tribunal to issue a notice to the landowner, whose name was appearing in the RTC. Obviously, in the year 1979, when the Tribunal took up the application (Form No.7) filed by writ petitioner, the name of Victor Castelino was mentioned in the RTC. In other words, Tribunal was bound to issue notice to the landowner, whose name was appearing in the revenue records at the time of considering the grant of the occupancy rights. It is evident that there are no records that would show that immediately after 01-03-1974 and before the Form No.7 was filed on 15-3-1979, the name of the Government was entered as vesting of the lands had taken place.
14. A perusal of the order of the Land Tribunal would indicate that there is no objective satisfaction of the fact that the land was demarcated. It would indicate that the Secretary of the Land Tribunal had verified the records and notices were issued. The lands were surveyed and survey 13 WA NO. 2540/2019 report was obtained. There is no survey report which was available for perusal. On the other hand, the sale deed executed by the landowner in favour of writ petitioner who is the son of Victor Castelino would show that, after the sale deed, there was a registered Will on 31-12-1986 executed by Victor Castelino in favour of his two sons. The said Will is accompanied by a sketch. Thereafter, there was a partition between writ petitioner Vincent Castelino and his brother Henry John Castelino. Therefore, this shows that there were several transactions after the sale deed by the landowner on 1-8-1974. Obviously, the claim of the writ petitioner is that he only came to know about the order passed by the Land Tribunal when the appellants herein came and started obstruction by citing the order passed by the Land Tribunal. Therefore, the contention that the writ petitions are bad for delay and laches is not sustainable.
15. Moreover, simply because in the year 1968-69, the names of the appellants herein was mentioned in the records of rights, it cannot be presumed to have continued 14 WA NO. 2540/2019 until 1974. The records do not show that in the year 1973-74 the name of the appellants herein was appearing in the record of rights as tenants. Though the appellants have sought to produce certain additional documents in the form of records of rights showing the appellants names appearing in the year 1968-69 that would not be of any help to the appellants. Moreover, this Court cannot enter into the appreciation of the evidence which has to be done by the Tribunal.
16. In that view of the matter, we are of the considered opinion that the question whether the appellants were the tenants as on the appointed date i.e. 01-03-1974, is a matter to be determined by the Tribunal. Without ascertaining as to whether on the appointed date the appellants were tenants, and that the sale of portion of the property in favour of Victor Castelino was subsequent to such vesting of the lands on account of the tenancy, is a matter to be decided by the Tribunal. Hence, we do not find any reason for indulgence in the order passed by the 15 WA NO. 2540/2019 learned Single Judge. Hence, the appeal is bereft of any merits and as such, the same is dismissed.
17. Consequently, IA No.1/2019 filed for production of additional documents does not survive for consideration and hence, it is dismissed.
Sd/-
(V KAMESWAR RAO) JUDGE Sd/-
(C M JOSHI) JUDGE tsn*