Mrs. Elfreeda Winnifred D Souza vs Mr. Robin D Souza
2022 Latest Caselaw 8551 Kant

                             1


    IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 10TH DAY OF DECEMBER, 2021

                         PRESENT

   THE HON'BLE MR. RITU RAJ AWASTHI, CHIEF JUSTICE

                           AND

        THE HON'BLE MR.JUSTICE KRISHNA S. DIXIT

                           AND

        THE HON'BLE MR. JUSTICE ASHOK S. KINAGI

       WRIT PETITION NO. 40157 OF 2014 (GM-CPC)

BETWEEN:

MRS. ELFREEDA WINNIFRED D'SOUZA,

                                            ... PETITIONER
(BY SRI. CYRIL PRASAD PAIS, ADVOCATE)

AND:

MR. ROBIN D'SOUZA
AND OTHERS
                                         ... RESPONDENTS

(BY SRI. S S MAHENDRA, ADDITIONAL GOVERNMENT ADVOCATE V.C.O DATED 12/03/2020;

SRI. M SUDHAKAR PAI, ADVOCATE FOR R1-5)

THIS REFERENCE IS MADE BY THE CHIEF JUSTICE IN VIEW OF TWO CONFLICTING JUDGMENTS OF LEARNED SINGLE JUDGES TO DETERMINE THE ISSUE WHETHER AN AGRICULTURAL LAND SITUATE WITHIN THE LIMITS OF MUNICIPAL CORPORATIONS LOSES ITS AGRICULTURAL CHARACTER AND THEREFORE THE PROVISIONS OF THE KARNATAKA LAND REVENUE ACT, 1964 CEASE TO APPLY TO THE SAID LAND IRRESPECTIVE OF THE FACT THAT THE AGRICULTURAL LANDS ARE NOT CONVERTED FOR NON- AGRICULTURAL PURPOSES.

THIS REFERENCE COMING ON FOR PRELIMINARY HEARING IN B GROUP THROUGH PHYSICAL HEARING THIS DAY, KRISHNA S. DIXIT, J., MADE THE FOLLOWING:-

ORDER ON REFERENCE

This reference arises from order dated 25.10.2019 made by

the then Hon'ble Chief Justice because of two conflicting decisions of

two learned Single Judges of this court in relation to valuation of

suit and payment of court fee when the agricultural land is situate

within the limits of city corporation.

2. One learned Single Judge in SMT.VIJAYALAKSHMI

VS. SMT. UGAMA BAI, (2015) 4 KCCR 3947 has held that if the

agricultural land in a declaration suit is situate within the city

corporation limits, its valuation has to be done on ad valorem basis

u/s 24(a) of the Karnataka Court Fees and Suits Valuation Act,

1958. This provision speaks of market value of the property. The

other learned Single Judge in R.ANANDA VS. NANJUNDASWAMY,

2006 SCC ONLINE KAR 557 has per contra held that merely

because the land comes within the city corporation limits, it does

not ipso facto lose its agricultural character and therefore, suit has

to be valued u/s 7(2)(b) of the Act, wherein the land revenue

factors and not the market value of the suit land. Surprising, both

these learned Judges in support of their views banked upon the

very same Division Bench decision namely J.NARAYANA & ORS.

vs. CORPORATION OF CITY OF BANGALORE, ILR 2005 KAR

60.

3. BRIEF FACTS OF THE PETITION:

(a) Petitioner is the plaintiff and the respondents are the

defendants. The suit in O.S.No.84/2010 is inter alia for a decree for

declaration of title to the 'punja land'. Respondents have filed the

Written Statement resisting the suit. They have raised the issue of

valuation & court fee contending that the suit property is not an

agricultural land, that it is situate within the limits of City

Corporation and that petitioner has undervalued the same and paid

lesser court fee. On the basis of pleadings of the parties, the

learned trial court vide order 18.07.2011 framed seven issues of

which the fifth relates to valuation & court fee. The same having

been tried as a Preliminary Issue, the learned trial Judge vide order

dated 30.7.2014 held that the suit land is not an agricultural land

and therefore, it has to be valued u/s 7(2)(d) of the Act; he

directed the petitioner to "pay court fee on the market value of the

suit property". This order is put in challenge in the Writ Jurisdiction

of this court.

(b) After service of court notice, the respondents have

entered appearance through their advocate. Since the matter is

related to payment of court fees, the State having been notified

vide order dated 12.3.2020 is represented by the learned AGA.

Learned counsel for the respondents and learned AGA resist the

petition making submission in justification of the impugned order

and the reasons on which it has been structured. Both the sides

have placed reliance on certain decisions in support of their version.

4. SUBMISSIONS AT THE BAR:

(a) Learned Counsel for the petitioner submits that: the suit

is one for, declaration of title in respect of 'punja land'; all punja

lands in Dakshana Kannada district are agricultural in character; in

the Revenue Records, they are so treated; section 2(18) of the

Karnataka Land Reforms Act, 1961 defines the term "agricultural

land" and the suit land answers the said definition; petitioner has

been paying land revenue, and not municipal tax; when the suit

was filed, the land was situate within the revenue village and at a

later point, Mangalore City Corporation limits having been widened

by the Govt. Notification, now it is within its embrace, is true;

valuation of suit property has to be made with reference to the date

of presentation of the plaint, and what happens thereafter is

irrelevant; he has correctly valued the suit u/s 7(2)(b) of the Act

and paid sufficient court fee; that being the position, the impugned

order which treats the land as non-agricultural and thereby directs

the petitioner to pay the court fee on its market value, is

unsustainable; he relies upon certain decisions in support of his

submissions.

(b) Learned Counsel appearing for the respondents and the

AGA appearing for the State, per contra, contend: that 'punja lands'

in Dakshana Kannada District are not agricultural lands; petitioner

has not whispered in the plaint as to the suit land being agricultural

or that it is put to agricultural user; whether agricultural or not,

once the land is situate within the City Corporation limits, its

character pales into insignificance; land has to be valued u/s

7(2)(d) of the Act and the ad valorem court fee has to be paid on its

market value; therefore, the impugned order cannot be faltered;

both they cite certain decisions in support of their contentions.

5. We have heard the learned counsel for the parties and

the learned AGA. We have perused the petition papers and adverted

to the rulings cited at the Bar. We are inclined to answer the

reference as under and for the following reasons:

(a) The 1958 Act provides for the valuation of subject matter

of suits and payment of court fees. Section 7 of the Act provides for

the determination of market value of the property involved, where

the court fee payable depends on such value. Sub-section (1)

specifically states that the market value of the property shall be

determined as on the date of the 'presentation of the plaint'. The

plaint was presented on 27.7.2010. However, the Mangalore City

Corporation limits admittedly were extended subsequent to the

institution of suit and therefore, this pendente lite development is

irrelevant for the purpose of market valuation of the suit land. In

other words, the suit land has to be valued as on 27.7.2010, as

rightly argued by learned counsel for the petitioner.

(b) The submission of learned counsel for the petitioner that

the suit property being a 'punja land' has to be necessarily treated

as an agricultural land, is bit difficult to countenance. True it is, that

the term 'agricultural land' is broadly defined by section 2(18) of

the Karnataka Land Reforms Act, 1961. A Division Bench of this

court in SUBHAKAR VS. THE LAND TRIBUNAL, 1999 (4)

Kar.L.J 524, has classified punja lands into six categories and held

"...punja lands are not agricultural lands as only thatched grass are

grown in those lands naturally and such lands are not brought

under cultivation...". The Apex Court in MONTHI MENEZES VS.

DEVAKI AMMA (2019) 6 SCC 136, at 12.1 observed as under:

"Apart from the above, it is also apparent that the High Court did not examine the definition of "land" as set out in Section 2(18) of the Act of 1961 to find if the land in question answers to the description therein. The wide- ranging meaning assigned to the expression "land" for the purpose of the Act of 1961 makes it clear that the expression refers not only to the land which is actually used for agricultural purposes but even to the land which is used or is capable of being used for agricultural purposes or even the purposes subservient thereto. On the facts and in the circumstances of this case, the said definition deserves due consideration while dealing with the challenge to the order made by the Tribunal."

(c) In view of the observations of the Apex Court, a punja

land for being treated as agricultural land, has to answer the Twin

Test namely it should be capable of being used for agricultural

purpose and it has been put to agricultural user. Thus, both these

factors namely agricultural potential and the factum of cultivation

have to concur to constitute the land as being agricultural in

character. However, petitioner has not whispered in his plaint about

these essential factors; in the absence of plea, presumption does

not arise. The nomenclatures such as 'punja' in the Revenue

Records do not have much significance. The payment of land

revenue instead of municipal taxes, per se, does not lend

agricultural character to the land, if it is otherwise not agricultural.

Similarly, a non-agricultural land when cultivated for agricultural

purpose does not thereby get converted into an agricultural one;

the Apex Court in MUNICIPAL CORPORATION LUDHIANA VS.

COMMISSIONER OF PATIALA DIVISION, (1995) 1 SCC 304 at

paragraph 7 has stated that there is no provision under the

Karnataka Land Revenue Act, 1964 requiring permission to convert

non-agricultural land into agricultural land.

(d) It is relevant to notice that Section 7(1) provides for

payment of court fee on the market value of 'any property'. The

term 'any property' is employed by the legislature in its generic

sense. Therefore, it may be any property capable of market value.

Such property may be tangible, intangible, movable, immovable

i.e., land or building, etc. Land may be agricultural or non-

agricultural. Sub-section (2) employs the word 'land' as a species,

the genus being 'any property'. Clauses (a), (b) & (c) of this sub-

section employ the word 'revenue'. Ordinarily, in agrarian

legislations, the word 'revenue' signifies the tax payable on

agricultural land. This apart, the text & context of this sub-section

which enlists other sections of the Act make it clear that it

envisages only 'agricultural land'. The reasons are not far to seek.

The Apex Court in Municipal Corporation Ludhiana supra observed

that in a country like ours, the source of livelihood of more than

70% of the population is agriculture. Climatic conditions in general

and rains in particular play havoc with the lives of farmers and

therefore, they need to be shown some protective concessions so

that for them, access to justice is not onerous. Such a State Policy

animates several other legislations too. Ordinarily, deeming clauses

are construed strictly. The concession of the kind cannot be claimed

by the plaintiff in a suit that involves any other property i.e., non-

agricultural land. An argument to the contrary cannot be

countenanced without straining the principal intent & policy content

of this provision. Therefore, the suit land needs to be valued on the

basis of its market value in terms of section 7(2)(b) which enacts a

deeming clause, the suit being one for declaration of title. This

inarticulate premise has animated the impugned order; the

language of the impugned order could have been still better, is

beside the point.

(e) A Division Bench of this Court in J.NARAYANA supra at

paras 5 & 6 observed as under:

"5. We have given our anxious consideration to the submissions made at the Bar. It is not disputed that the suit property stands included within the Corporation limits in terms of a notification issued much earlier to the filing of the suit. As a result of such I inclusion, the taxes applicable within the Corporation limits would by operation of law and in particular Section 4 Sub-section 4 of the Municipal Corporation Act become applicable to the extended area also. Even assuming that the land in question was agricultural land before its inclusion in the Corporation limits, the same would not necessarily mean that it either continued to pay land revenue nor would such land be exempted from payment of property tax under the said Act. As rightly pointed out by Mrs. Patil, Section 110 of the Karnataka Municipal Corporation Act, 1976, exempts the payment of property tax qua only such lands as are registered to be agricultural lands in revenue records of Government and as are actually used for cultivation of crops. Stated conversely just because certain land included in the Corporation limits is registered or used for cultivation purposes would not imply that the said land continues to pay land revenue under the Land Revenue Act. On the contrary, Land Revenue Act would cease to be applicable no sooner the land is brought within the Corporation limits.

6. There is another angle from which the issue can be viewed. Section 7 of the Karnataka Court Fees and Suits Valuation Act, 1958 creates a legal fiction regarding the market value of lands that form an entire estate or a definite share of an estate are concerned. A closer reading of Section 7(2)(b) would show that not only should the land be an entire estate or a definite share of an estate, but it must be paying annual revenue to the Government. The expression "paying annual revenue to the Government" in Section 7(2)(b) is significant and in our opinion implies that the liability to pay land revenue must be clear and subsisting one. In cases where such liability ceases to exist on account of incorporation of the area within the limits of a Municipal Corporation, the land cannot be said to be

paying annual revenue to the Government. That is because the liability to pay any such revenue must be deemed to have ceased from the moment the land is included in the extended Corporation limits."

(f) What emerges from the above observations of the

Division Bench is that where the land, be it agricultural or

otherwise, is situate within the municipal limits of a city corporation,

for the purpose of court fee, its market value has to be taken into

consideration, even if the land continues to be agricultural in the

official records and the land revenue instead of municipal tax

otherwise payable thereon. The decision of the learned Single Judge

in Smt.Vijayalakshmi supra accords with this view and therefore,

reflects the correct position of law. However, the decision of another

learned Single Judge in R.Ananda supra runs counter to the view

now we have taken and therefore, it has been rendered a destitute

of precedential value.

(g) There is yet another aspect which came to light during

the course of hearing. Clause (d) of sub-section (2) of section 7 of

the Act to the extent it related to agricultural land has been struck

down by a learned Single Judge of this court in MAHADEV AND

ANOTHER VS. STATE OF KARNATAKA BY IT'S SECRETARY,

REVENUE DEPARTMENT AND ANOTHER, ILR 2003 KAR 1724.

This decision being challenged in W.A.No.3181/2002 between

STATE OF KARNATAKA VS. MAHADEV disposed off on

30.1.2003 has been affirmed by the Division Bench. There being no

further challenge thereto, section 7(2)(d) only to that extent is no

longer on the statute book. Learned trial Judge in the impugned

order inter alia referred to this provision since the suit land is non-

agricultural. Thus, striking down of the said part of the provision

does not come to the aid of petitioner even in the least.

In the above circumstances, we answer the Reference as

under:

(a) The legal position as to the valuation of the land and

payment of court fee in a suit for declaration of title, as delineated

by the Division Bench decision of this Court in J.NARAYANA &

ORS. vs. CORPORATION OF CITY OF BANGALORE, ILR 2005

KAR 60 reflects the correct position of law and that its precedential

value is not affected by the striking down a part of section 7(2)(d)

of the Karnataka Court Fees and Suits Valuation Act, 1958.

(b) The legal position in regard to suit valuation and

payment of court fee as stated in the decision of the learned Single

Judge in SMT.VIJAYALAKSHMI VS. SMT. UGAMA BAI, (2015) 4

KCCR 3947 accords with that in J.Narayana supra and therefore, is

correct. However, the decision of the other learned Single Judge in

R.ANANDA VS. NANJUNDASWAMY, 2006 SCC ONLINE KAR

557 being repugnant to the ratio laid down by the Division Bench in

J.Narayana supra, does not reflect the correct position of law and

therefore, lacks precedential value.

Registry to post the Writ Petition before the roaster Bench for

consideration in terms of answer to the Reference.

Costs made easy.

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CHIEF JUSTICE

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JUDGE

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JUDGE

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