BYALAPPA Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) By consent of learned counsel, this appeal was treated as having been posted for hearing and we heard them. This appeal is from the order of Bhimiah, J., in W. P. No. 6512 of 1977 Respondent-3 therein has presented this appeal. Since the petitioner therein died during the pendency of the writ petition, his legal representatives are arrayed as respondents 3(a) to 3(d) in this appeal. For the sake of convenience, the parties will hereinafter be referred to according to their respective positions in the writ petition.

(2.) Respondent-3 had made two applications under S. 48-A of the Karnataka Land Reforms Act, 1961 (hereinafter referred to as 'the Act') before the Land Tribunal, Bangalore North Taluk (hereinafter referred to as 'the Tribunal') seeking occupancy right in respec of 3 acres 1 gunta of land comprised in Sy. No. 4112 of Sasvegatta village, Bangalore North Taluk, belonging to the petitioner. Those applications were granted by the Tribunal by its order dated 18-6-75. That order was impugned in the writ petition from which the present appeal has arisen. There, the petitioner's grievance was that the Tribunal had made the order impugned therein without holding a proper enquiry. According to him, statements of the parties and their witnesses had not been recorded and the purported evidence on which the Tribunal had based its order, could not have been relied upon by the Tribunal, as he (the petitioner) was not given an opportunity to rebut the same. His further grievance was that he was not afforded by the Tribunal opportunity to substantiate the case put-forward by him in the statement of objections filed before the Tribunal. The learned single Judge, who heard the writ petition, quashed the impugned order of the Tribunal and further rejected respondent-3's applications under S. 48-A of the Act.

(3.) In this appeal, Shri P. Viswanatha Shetty, . learned Counsel for the appellant (respondent-3 in the writ petition), had no grievance in regard to the quashing of the order of the Tribunal by the learned single Judge. But, he contended that the learned single Judge was in error in himself appreciating the purported evidence on which the Tribunal had made its order and rejecting respondent-3's applications for grant of occupancy rights. He maintained that the learned single Judge should have remitted the case to the Tribunal to decide the case afresh after recording the evidence properly. The proper course for the learned single Judge was to remit the case to the Tribunal for a fresh disposal according to law (Muniyallappa v. Krishna Murthy (1). Moreover, when the petitioner's grievance in the writ petition, was that he did not have sufficient opportunity to put forth his case before the Tribunal, it was absolutely necessary to afford now to his legal representatives such opportunity and the case should not have been decided by the learned single Judge on reappreciation of the evidence which, even according to the petitioner, was not worthy of consideration . Shri K. Channabasappa, learned Counsel for present respondents 3 (a) to 3(d) (legal representatives of the deceased petitioner), sought to sustain the order of the learned single Judge on a ground different from the one on which he (the learned single Judge) based his order. Shri Channabasappa argued that the applications under S. 48-A of the Act had to be dismissed because the land in question was not an agricultural land and the applicant for such land could not be regarded as cultivating it immediately prior to 1-3-74. Elaborating his contention, Shri Channabasappa submitted that the provisions of Section 45 of the Act apply only to an agricultural land and not to a non-agricultural land, that a person who raises casurina plantation on a land could not be regarded as cultivating an agricultural land and hence he could not claim grant of occupancy right in respect of such land. Shri Channabasappa, is right in his submission that in view of the "definition of the word 'land' in sub-section (18) of S. 2, the provisions of S. 45 apply only to an agricultural land and not to a non-agricultural land. But, that definition includes a land which is capable of being used for agricultural purposes and also a forest land. A-1 and on which casurina trees are grown, is undoubtedly capable of being used for agricultural purposes. Even if a land on which casurina plantation is raised, is regarded as a forest land, such forest land also comes within the definition of the word 'land' in S. 2(18). Hence, we have no hesitation in rejecting the contention that the land in dispute is not an agricultural land. We shall now examine whether raising casurina trees can be regarded as cultivation. Sub-section (10) of S. 2 which defines the term 'to cultivate', reads: