Karnataka High Court

Shri.Parshuram S/O.Topanna Rajai vs The State Of Karnataka on 28 November, 2023

Author: S.Sunil Dutt Yadav

Bench: S.Sunil Dutt Yadav

                                                   -1-
                                                          NC: 2023:KHC-D:13874-DB
                                                           WA No. 100168 of 2023




                           IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
                              DATED THIS THE 28TH DAY OF NOVEMBER, 2023
                                                PRESENT
                             THE HON'BLE MR JUSTICE S.SUNIL DUTT YADAV
                                                   AND
                              THE HON'BLE MR JUSTICE VIJAYKUMAR A.PATIL
                               WRIT APPEAL NO.100168 OF 2023 (KLR-RR/SUR)
                      BETWEEN:
                      1.   SHRI. PARSHURAM S/O. TOPANNA RAJAI,
                           AGE: 59 YEARS, OCC: AGRICULTURE,
                           R/O.KEDANUR VILLAGE, TQ. & DIST: BELAGAVI.

                      2.   SHRI. LAXMAN S/O. TOPAMMA RAJAI,
                           AGE: 85 YEARS, OCC.: AGRICULTURE,
                           R/O.KEDANUR VILLAGE, TQ. & DIST.: BELAGAVI.

                      3.   SMT. YALLUBAI W/O. VAIJANTHONGEKAR,
                           AGE: 65 YEARS, OCC.: HOUSEHOLD WORK,
                           R/O. KEDANUR VILLAGE, TQ. & DIST: BELAGAVI.

                      4.   SMT. LAXMIBAI W/O. SUBRAO JADHAV,
                           AGE: 72 YEARS, OCC: HOUSEHOLD WORK,
                           R/O. KEDANUR VILLAGE, TQ. & DIST: BELAGAVI.
                                                                         ...APPELLANTS
                      (BY SRI. SHIVRAJ S. BALLOLI, ADVOCATE)
         Digitally
         signed by
         JAGADISH
JAGADISH T R
                      AND:
TR       Date:
         2023.12.12
         15:06:21
         +0530
                      1.   THE STATE OF KARNATAKA,
                           DEPARTMENT OF REVENUE,
                           VIDHANA SOUDHA, AMBEDKAR VEEDHI,
                           BENGALURU - 560 001.
                           REP. BY ITS PRINCIPAL SECRETARY.

                      2.   THE REGIONAL COMMISSIONER,
                           BELAGAVI REGION, BELAGAVI - 590 001.

                      3.   THE DEPUTY COMMISSIONER, BELAGAVI,
                           I COMPOUND, BELAGAVI - 590 001.

                      4.   THE ASSISTANT COMMISSIONER, BELAGAVI,
                           BELAGAVI - 590 001.
                             -2-
                                   NC: 2023:KHC-D:13874-DB
                                    WA No. 100168 of 2023




5.   THE TAHSILDAR, BELAGAVI,
     BELAGAVI - 590 001.

6.   SMT. SUBHADRA W/O. ANIL DESHPANDE,
     AGE: 75 YEARS, OCC.: HOUSEHOLD WORK,
     R/O.SHIVAJI COLONY, TILAKWADI,
     BELAGAVI - 590 001.

7.   SHRI. MANDAR S/O. ANIL DESHPANDE,
     AGE: 43 YEARS. OCC: BUSINESS,
     R/O.SHIVAJI COLONY, TILAKWADI,
     BELAGAVI - 590 001.

8.   SMT. UMA W/O. UMESH SHASTRI,
     AGE: MAJOR, OCC.: HOUSEHOLD WORK,
     R/O. PLOT NO.19/B, 5TH LANE,
     PRAGATI COLONY, 100 FT.ROAD,
     TQ. & DIST: SANGLI-416 406, MAHARASHTRA STATE.

9.   SMT. PURVA W/O. SANJU KULKARNI,
     AGE/; MAJOR, OCC.: HOUSEHOLD WORK,
     R/O.PLOT NO.2, UMESH KHATAVKAR COLONY,
     SHAHPURI, TQ. & DIST.: SATARA-415 001.

10. SHRI. MARUTI S/O. KALLAPPA RAJAI,
    AGE: 83 YEARS. OCC.: AGRICULTURE,
    R/O. KENDUR VILLAGE,
    TQ. AND DIST.: BELGAVI- 590 001.

11. SHRI. GURUNATH KALLAPPA RAJAI,
    AGE: 64 YEARS. OCC.: AGRICULTURE,
    R/O. KENDUR VILLAGE,
    TQ. AND DIST.: BELGAVI- 590 001.
12. SHRI. MANOHAR KALLAPPA RANJAN,
    AGE: 61 YEARS. OCC.: AGRICULTURE,
    R/O.KENDUR VILLAGE, TQ AND DIST:BELGAVI-590 001.
                                             ...RESPONDENTS
(BY SMT. GIRIJA HIREMATH, HCGP FOR R1 TO R5,
SRI. SANGRAM S. KULKARNI, ADVOCATE FOR C/R6 TO R9,
SRI. LAXMAN T. MANTAGANI ADVOCATE FOR R10 TO R12)

     THIS WRIT APPEAL IS FILED U/S.4 OF KARNATAKA HIGH
COURT ACT, 1961, PRAYING TO A) SET-ASIDE IMPUGNED
JUDGMENT DATED 18/01/2023 PASSED BY HON'BLE SINGLE JUDGE
                                -3-
                                       NC: 2023:KHC-D:13874-DB
                                        WA No. 100168 of 2023




IN WP NO.108703/2018 AND CONSEQUENTLY, ALLOW THE WRIT
PETITION FILED BY THE APPELLANTS IN W.P.NO.108703/2018.

      THIS APPEAL COMING ON FOR PRELIMINARY HEARING, THIS
DAY, S.SUNIL DUTT YADAV J., DELIVERED THE FOLLOWING:

                          JUDGMENT

The present appeal has been filed seeking for setting

aside the order passed in WP No.108703/2018, whereby the

learned Single Judge has rejected the challenge made to the

order of the Regional Commissioner dated 29.11.2018 at

Annexure-M to the writ petition.

2. The parties are referred to by their rank in the

writ proceedings for the purpose of convenience.

3. The brief facts as is relevant for the disposal of

the present appeal reads as follows:

The petitioners are stated to be the tenants of the land

bearing Sy.No.24/2 measuring 9 acres 5 guntas situated at

Belagavi District. It is stated that father of the petitioners

had filed Form No.7 claiming occupancy right in respect of

the suit schedule property. It is further case of the

petitioners that Anil Venkatesh Deshpande had moved an

application before respondent No.5 seeking resumption of

NC: 2023:KHC-D:13874-DB

land on the ground that he was working in Army and in

terms of Section 15 of the Karnataka Land Reforms Act,

1961 (for short, 'Act,1961'). The said application had been

allowed and appeal was preferred before the Assistant

Commissioner, who had rejected the application.

4. The hierarchy of judicial remedies against the

order of the Assistant Commissioner is detailed by learned

Single Judge, which are found to be accurate and

accordingly, portion of the order of the learned Single Judge

is extracted below:

"4. The father of the respondent Nos.6 to 9 have questioned the order passed by the respondent No.4 in W.P.No.14287/1989 and this Court, by order dated 21.01.1991 (Annexure-D), directed the respondent No.4 herein to reconsider the issue afresh, after affording opportunity to the contesting respondent herein. Thereafter, the 4th respondent herein, by order dated 17.11.1992, dismissed the appeal preferred by the father of petitioners and as such, confirmed the order passed by the 5th respondent herein (Annexure-E).

5. Feeling aggrieved by the same, petitioners preferred Writ Petition No.36216/1992, before this Court and this Court, by order dated 09.03.1999 (Annexure-F), remitted the matter to the Special Tahasildar, Land Reforms, Belagavi, to conduct fresh enquiry after affording opportunity to the parties. Thereafter, the 5th respondent conducted fresh enquiry and by order dated 28.06.2000 dismissed the application.

6. Being aggrieved by the same, the contesting respondents herein have preferred appeal before the 4th

NC: 2023:KHC-D:13874-DB

respondent herein in KLR:AP:CR-6/2000-2001 and the 4th respondent herein, by order dated 28.06.2001 (Annexure- H), dismissed the appeal preferred by the contesting respondents herein and feeling aggrieved by the same, and being aggrieved by the order passed by the respondent No.4, the father of the contesting respondents herein filed RB/LRM/15:2002-03 before the 2nd respondent herein and the 2nd respondent herein by order dated 29.11.2018, accepted the appeal preferred by the contesting respondents herein and as such, arrived at a conclusion that the land in question has to be resumed in favour of the contesting respondents herein. Being aggrieved by the same, the petitioners have presented this writ petition."

5. Learned Single Judge after detailed consideration

has rejected the writ petition and the same has been

challenged in the present proceedings.

6. Learned counsel for the petitioners would contend

that insofar as finding relating to the respondents No.6 to 9,

who are the legal heirs of the original applicant Anil

Venkatesh Deshpande, claiming rights through Anil Venkatsh

Deshpande, who was a soldier, his employment as a soldier

is seriously not contested.

7. However, learned counsel Sri. Shivaraj S. Balloli,

submits that Section 15 of the Act 1961 would mandate that

there has to be continuance of the tenancy and accordingly,

there must be some material, which would indicate that

tenancy has continued.

NC: 2023:KHC-D:13874-DB

8. It is submitted that such interpretation is required

to be strictly complied in light of the original proceedings,

wherein the petitioners' father had filed Form No.7 claiming

rights showing the name of Anil Venkatesh Deshpande's

father as landlord. Accordingly, it is submitted that if the

original applicant Anil Venkatesh Deshpande has sought to

invoke Section 15, it was necessary that he has to

demonstrate that the tenancy has continued and finding

could be arrived at only if there is a material to indicate the

continuance of tenancy either by way of paying rent or by

entering into fresh agreement etc.

9. It is further submitted that there has to be finding

by the Authority regarding bonafide requirement by the

soldier as is mandated under Section 15(2) of the Act 1961.

It is submitted that neither of these findings come forth from

the order impugned.

10. It must be noticed that this Court in WP

No.26772/2005 disposed on 30.05.2016 had remitted the

matter back to the Regional Commissioner for fresh

consideration. The order of the Regional Commissioner

NC: 2023:KHC-D:13874-DB

records a finding regarding original applicant being a soldier.

Insofar as such finding is concerned, there is no serious

dispute.

11. It must be noted that as regards the requirement

of bonafideness, the very claim of the soldier that he

requires the land and obviously such right of enjoyment

would be post his retirement from service would by itself

reflect bonafide. Such a submission is made across the bar

by the learned counsel appearing for respondents No.6 to 9

and that is the only manner of interpreting the application

under Section 15 of the Act 1961, which deserves

acceptance.

12. Needless to state that the father of respondents

No.6 to 9 passed away on 06.10.2006, subsequent to having

retired from service. Accordingly, as death was subsequent

to superannuation, the right to resume was to be construed

as on the date of superannuation which cannot be contended

to be other than being a bonafide requirement.

NC: 2023:KHC-D:13874-DB

13. It must also be observed that this right devolves

on the legal representatives, who are respondents No.6 to 9

herein.

14. Insofar as the contention that there has to be

continuance of the tenancy for the purpose of invoking

Section 15 of the Act 1961, it must be noticed that the

continuance need not be by any express agreement. The fact

that tenants cannot be dispossessed except in accordance

with law by itself would extend the protection to the tenants

to remain in occupation and once the landlord passes away,

Anil Venkatesh Deshpande steps into shoes of his father and

subsequently after death of Anil Venkatesh Deshpande,

respondents No.6 to 9 have rights devolved on them. After

the death of the original land owner, who is the father of Anil

Venkatesh Deshpande, the right automatically falls to his

son, as the tenants cannot be evicted and it should be

deemed as continuance of tenancy under the legal heirs of

original owner and accordingly, word "continuance" cannot

be given any interpretation requiring fresh relationship to be

established with the legal heirs of the original land owner.

NC: 2023:KHC-D:13874-DB

15. It must also be noticed that application for

resumption under Section 15 of the Act 1961, Anil Venkatesh

Deshpande has shown the petitioner as the tenant, which

could also be construed as acceptance of the status of the

petitioner as tenant. Accordingly, the word "continuance"

cannot require any further evidence to establish the

relationship of landlord and tenant between the petitioner

and Anil Venkatesh Deshpande.

16. Insofar as the contention that the application has

been filed, while he was still soldier, the said aspect had

already been settled by the judgment of co-ordinate Bench

of this Court in the case of Ningappa Avanna Astekar Vs.

The State of Karnataka & Others1, which has been

referred to subsequently in other judgments also.

17. Further it is noticed the observation made in

Narasing Goapalrao Desai Vs. The Land Tribunal,

Khanapur & Others2, which is of relevance reads as

follows:

WP No.24925/1990, dated 5.8.1993

1984 (1) KLJ 360

- 10 -

NC: 2023:KHC-D:13874-DB

27. We have earlier pointed out that Section 5(3) did not undergo any corresponding change when Section 5(2) was amended by Karnataka Act 3 of 1982. By Section 3 of Karnataka Act 3 of 1982, the words 'created or continued' were substituted for the word 'created' in S.5(2). The effect of the amendment is that a soldier or seaman could create a fresh tenancy or continue the existing tenancy. Otherwise, there appears to be no other reason to leave Section 5(23) untouched when Section 5(2) was amended by Karnataka Act No.3 of 1982. That means, the existing tenancy could be continued by a soldier or seaman either by express terms or by implied understanding. Acceptance of rent coupled with an assent of the soldier or seaman may be sufficient to continue the tenancy. The document evidencing the same may not be necessary. That again is a concession to soldiers and seaman.

This Court has clearly recognized that the continuance

could be even by implied understanding.

18. In light of the discussion made above and taking

note that the petitioners are accepted to be tenant by Anil

Venkatesh Deshpande in application under Section 15 and

that the claim of the petitioners' father as tenant under the

landlord who is the father Anil Venkatesh Deshpande not

having been disputed, it can be stated that there is

continuance of operation of law.

19. Accordingly, we find no reasons to interfere with

the conclusion arrived at by the learned Single Judge while

- 11 -